IMPORTANT POINT
A demand for payment of amount referred to in Section 138(b) of Negotiable Instruments Act refers to the cheque amount &, not any other amount whether smaller or higher & such notice mentioning other amount would be illegal.

N.K. Bhattacharyya, J. - By this revision the accused petitioner has challenged the order dated 26- 7 -1994 passed in Complaint Case No. C/314/ 94 by the learned Chief Metropolitan Magistrate. Calcutta under Section 138 of the Negotiable Instruments Act, 1881 whereby the learned Magistrate took cognizance of the offence and directed issuance of process against accused No.1, the petitioner herein.

2. A short conspectous of the case is that the petitioner and her husband Ghanashyamlal Ozha held 620 shares of Messrs Nazareth Engineering Company Private Limited and they agreed to transfer 50% of such shares of the said company to the opposite party herein and her wife Smt. Sheuli Paul. The consideration was fixed at Rs. 6,50,000/- for transfer of such shares and the opposite parties paid Rs. 5,00.000/- in cash and the balance of Rs. 1,50,000/- by bank draft.

3. The petitioner herein and her husband failed and neglected to transfer the said shares in favour of the opposite party herein and her wife nor did the petitioner and, her husband return the said sum or any part thereof to them.

4. On 11-6-1994 the petitioner issued a cheque for an amount Rs. 5,79,000/- drawn on United Bank of India. Lansdowne Branch, Calcutta in favour of the opposite party and her wife and on the same date, the said cheque was deposited by the opposite party herein and his wife in their bank account at Fariapukur Branch. Calcutta but the cheque was returned with the Bank endorsement "insufficiency of funds into the account".

5. On 24-6-1994 the opposite part herein through his learned Advocate sent a notice demanding payment of money of Rs. 5,79,000/- within 15 days from the date of receipt of the said notice. From the record it appears that actually a demand was made for a payment of amount not Rs. 5,79,000/ but Rs. 6,50,000/-.

6. The petitioner and her husband alleged that the said legal notice was not received on 1-7-1994 and in fact they received it on 29-6-1994 and replied that notice. However, they failed and neglected to pay the said sum to the opposite party and tier wife, hence the petition of complaint by the opposite party.

7. Mr. Sunit Deb, the learned Advocate appearing with Advocate Mr. A.K. Ghosh contended for the petitioners in reference to Section 142 of the Negotiable Instruments Act, 1881 that no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint in writing, made by the payee or as the case may be, the holder in due course of the cheque. He contended that in the instant case the cheque was drawn in the name of the opposite party No. 1 herein and his wife Smt. Sheuli Paul and that the meaning of 'Payee' as appears in Section 142 of the Negotiable Instruments Act should be read in reference to Section 13(2) of the General Clauses Act. 1997 which means that the words in singular shall include the plural, and vice versa.

According to him as the cheque was drawn in the name of opposite party No. I and his wife Smt. Sheuli Paul a complaint by both of them is competent and not by either of them and upon such complaint by ether of them the Court was not competent to take cognizance of the offence.

That vas also the argument in reference to Section 138 of the Negotiable Instruments Act where the term 'person' has been used in that section.

8. From the record it appears that the notice was issued under Section 138 only on behalf of the opposite party No. I herein by his Lawyer.

Accordingly to Mr. Deb the said notice is also illegal as the notice was not given by the opposite party NO.1 and his wife but by the opposite party No.1 alone.

9. His second contention was that the amount claimed in the notice was Rs. 6,50,000/- but the complaint has been made for a sum of Rs. 5,79,000/- and as such either the complaint is bad or the notice is bad.

10. The third contention of Mr. Deb was that though all the papers were not before the Court but as the papers have been filed as annexure in this revision the Court can