The court emphasized the importance of proper service of notice, validity of the notice, and maintainability of the petition of complaint under Section 138 of the Negotiable Instruments Act.

JUDGMENT:- This criminal appeal has been preferred against the judgment passed by the learned City Sessions Judge, 8th Bench, Calcutta in Criminal Appeal No.21 of 1999 whereby he acquitted the accused for the offence under Section 138 of the Negotiable Instruments Act.

2. The case of the appellant is that he is the Manager of the firm of M/. L. M. Enterprises and being duly empowered and authorized by the proprietor of the said firm, he filed a petition of complaint under Section 138 of the Negotiable Instruments Act against the accused/respondent in the Court of the Chief Metropolitan Magistrate, Calcutta. Said case was registered as Case No.C/1815/95.

3. It was alleged in the said omplaint, by the complainant that the accused/respondent as the proprietor of M/s. Sree Ramdevji Art International, in discharge of his existing liabilities issued two account payee cheques of Rs.5,00,000/- each drawn on Indian Overseas Bank, Chowrang-hee Branch in favour of the appellant company. But those cheques were dishonoured and returned back to the appellant company. A notice was sent to the accused demanding payment of the amount as mentioned in those two cheques within 15 days from the receipt of the said notice. However, as the accused failed to make the payment, so the petition of complaint was filed against the accused by the complainant.

4. During trial, charge under Section 138 of the Negotiable Instruments Act was framed against the accused who pleaded no guilty and claimed to be tried. The accused contested the case challenging the service of the notice as well as the maintainability of the case. The complainant examined three witnesses while the defence also examined three witnesses including himself.

5. Learned Metropolitan Magistrate 16th Court Calcutta, upon consideration of the evidence on record, was pleased to hold the accused guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, but as he was of the opinion that he could not impose adequate sentence, as provided in the statute, so he referred the matter to the learned Chief Metropolitan Magistrate as per provisions of Section 328 of Cr.P.C.

6. Learned Chief Metropolitan Magistrate by his judgment dated 17.08.1999 held the accused guilty for the offence under Section 138 of the Negotiable Instruments Act and sentenced him to pay fine of Rs.10,00,000/- in default to suffer rigorous imprisonment for one year with the direction that 80% of the fine amount, if realized, would be paid to the complainant by way of compensation.

7. Against the said order of conviction, the accused preferred an appeal before the learned City Sessions Court and said Court by his judgment dated 31.01.2001 was pleased to set aside the order of conviction, as passed by the learned Chief Metropolitan Magistrate Calcutta and acquitted the accused.

8. As the complainant/appellant is aggrieved by the said order of acquittal of the accused by the learned Sessions Judge, so this criminal appeal has been preferred by the complainant before this Court after obtaining special leave. It has been alleged in the appeal, as filed by the complainant, that the learned Sessions Judge was not at all justified in holding that the notice was not properly served upon the accused and the notice is also not legal and valid in the eye of law and that the petition of complaint was not entertain able as it was not filed by the proprietor himself. According to the appellant, the findings of the learned Sessions Judge are absolutely illegal and improper and those are perverse in nature causing failure of justice. So the appellant has prayed for setting aside the order of acquittal, as passed by the learned Sessions Judge.

9. Learned Advocate for the appellant argued that the learned Sessions Judge acquitted the accused/respondent mainly on three grounds viz. (1) the notice was not properly served upon the accused; (2) the notice is also not legal and valid; and (3) since the complainant is a proprietorshi

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