The central legal point established in the judgment is the requirement of a written demand for payment within 15 days of receiving the bank's intimation of dishonor, as mandated by Section 138 of the Negotiable Instruments Act.

Manjula Chellur, J.—Heard the learned Counsels on either side.

2. The Appellant before this Court is the complainant who launched prosecution against the Respondent herein for the offence punishable under Section 138 of Negotiable Instruments Act (in short, the "Act"), on the ground that the Respondent /accused issued a cheque dated 12.2.2001 for a sum of Rs. 60,000/- payable by him drawn on Vijaya Bank, Kumbra Branch and the same was returned for insufficient funds on 23.2.2001. He filed a complaint and let in evidence as well. The defence taken up by the Respondent was to the effect that no notice was served on him with regard to the dishonour of the cheque and making a demand for the payment of Rs. 60,000/-, the amount under the dishonoured cheque. The learned Judge, on perusal of the records, came to the conclusion that the signatures found at Exs. P.1 and P.7 alleged to be the signatures of accused are different and so also the complainant has failed to establish the fact that after intimation of dishonour of the cheque by the bank, he sent in writing or demanded for the payment by way of notice and the said notice was served on the accused. Therefore, the complaint came to be dismissed. Aggrieved by the same, the Appellant is before this Court.

3. Learned Counsel for the Appellant relies on Section 94 of the Act which deals with the mode in which notice may be given. He also relies on the decision in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. reported in ILR 2000 Kar 2726. Relying on the said judgment and the provision of law, according to him, the address shown at E.P.6 - postal receipt would give rise to a presumption that such notice was sent to the address mentioned therein, therefore, in the absence of the Respondent /accused entering the witness box and denying the receipt of such notice, the presumption has to be in favour of the complainant that such notice came to be served on the Respondent /accused even under the General Clauses Act.

4. As against this, learned Counsel for the Respondent /accused submits that the mandatory requirement under Section 138 of N.I. Act is to make a demand to the amount under the dishonoured cheque after receiving the intimation from the bank regarding the dishonour, therefore, unless and until such demand is made on the Respondent / accused, the cause of action to file 138 proceedings would not enure to the benefit of the complainant. Even otherwise, the material brought on record through the cross-examination of PW-1 discloses that the signature on the postal acknowledgement and the signature on the dishonoured cheque Ex.P.1 belonging to the accused, as stated by the complainant, are different and the address at Ex.P.7 is altogether a different one. Therefore, there is no compliance of requirement of law on the part of the complainant in making a demand for the payment of amount under the dishonoured cheque in accordance with Section 138 of the Act. Therefore, the order of the learned Magistrate deserves to be confirmed.

5. Section 94 of the Negotiable Instruments Act, reads as under:

Mode in which notice may be given.-Notice of dishonour maybe given to a duly authorised agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or where he has been declared an insolvent, his assignee, may be oral or written, may, if written be sent by post; and may be in any form; but it must inform the party to whom it is given either in express terms or by reasonable intendment, that the instrument has been dishonoured and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended.

It if the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid.

6. Definitely, this indicates the mode in wh