IMPORTANT POINT
Notice under Section 138 (b) of Negotiable Instruments Act demanding amount of dishonoured cheque and further amount towards cost of notice is invalid and complaint cannot be maintained on such notice.

D.P. Sircar, J. - The Opposite Party Nos. 2 to 4 are the partners of the O.P. No.1 with which company, the petitioner, financing company had some business transactions. It has been alleged in this case that the accused, O.P. No.2 at the time of execution of the agreement with the petitioner-company in discharge of liability of the O.P. No.1 company issued three post-dated cheques bearing No. 438640 dated 3-11-1996, No. 438641 dated 3-12-1996 and No. 438642 dated 3-1-1997 for a total sum of Rs. 97,440/- only, each cheque being for an amount of Rs. 32,480/-. The other O.P., it is alleged, were present and consented to the act of the issuance of the cheques by the O.P. No.2. The cheques were duly presented by the agent of the petitioner to the banker of the complainant petitioner company, that is, Allahabad Bank within the validity period. But the cheques were returned being dishonoured with the remarks "refer to drawer" as per memo of the bank dated 7-1-1997. The petitioner-company got the intimation about dishonour of the cheques on 8-1-1997. Thereafter, the petitioner-complainant tried to establish contact with the accused persons O.Ps. but failed to contact them as the accused persons continued to avoid any contact with the complainant petitioner.

2. Under this circumstances as alleged by the petitioner, the petitioner served legal notice upon the accused persons under Section 138 (b) of the N.I. Act demanding payment of the aforesaid amount of Rs. 97,440/-. Alongwith that amount for which cheques were issued, M/s. Sinha and Co. through whom the notice was served upon the O.Ps. accused, demanded a further sum of Rs. 510/ - as the cost of the aforesaid notice and called upon the O.Ps.-accused to make payment of the amount within 15 days of the receipt of the notice. But in spite of that the accused-O.Ps. did not pay the amount and for that the petitioner-complainant lodged complaint under section 138 read with section 141 of the N.I. Act before the learned Chief Metropolitan Magistrate, Calcutta. The learned C.M.M., Calcutta took cognizance and transferred the case to the learned Metropolitan Magistrate, 16th Court, Calcutta, who examined the complainant as a witness on solemn affirmation, but instead of proceeding with the case he refused to issue process against the present accused persons, opposite parties. The petitioner then filed an application before the Ld. Magistrate submitting that in spite of the claim of cost of the notice as made in the demand of notice issued in terms of section 138 (b) of the N.I. Act the case was quite lawful and liable to be proceed with. But by the order dated 29-5-1997 the trial Court dismissed the complaint filed by the petitioner. The petitioner prays for setting aside the order dated 25-9-1997 passed by the Ld C.M.M., 16th Court, Calcutta, in C-497/97 and for directing the Magistrate to proceed according to law. The petitioner has given a xerox copy of all the relevant documents. It appears from the xerox copy of the notice issued under section 138 (b) of N.1. Act annexed at page 23 of this revisional application that the petitioner through the Advocate Firm claimed payment not only of the cheque amount of Rs. 97,440/- but also a further amount of Rs. 510/- as the cost of that notice, calling upon the accused opposite parties to make payment of the amount within 15 days of the receipt of notice at the risk of institution of criminal proceeding under section 138 read with section 141 of the N.I. Act. It appears from page 27 of the revisional application that Ld. C.M.M., 16th Court, Calcutta by his order dated 29-5-1997, a xerox copy of which has been filed with this revisional application, held that:

"He considered, pursued the copy of documents filed. It reveals from the copy of notice of demand dt. 14-1-1997 that the complainant has demanded the accused person to pay I the cheque amount of Rs. 97,440/- along with Rs. 510/- towards cost of notice.

In my opinion in view of the decisio