A demand notice under section 138 of the Negotiable Instruments Act, 1881 is not invalid merely because it mentions a wrong cheque number, provided the drawer is aware of the dishonour of the cheque issued by him.

Debiprasad Sengupta, J.

This is an application for quashing of a proceeding being complaint case No. C/1629 of 1996 pending in the court of learned Metropolitan Magistrate 12th Court, Calcutta under section 138/141 of the Negotiable Instruments Act, 1881.

2. The aforesaid proceeding was initiated on the basis of a petition of complaint filed by the complainant/opposite party. The allegations made in the petition of complaint is that the accused petitioner approached the complainant/ opposite party's company for corporate loan and promised to repay the same within a stipulated period and in that perspective issued a cheque bearing No.594544 dated 16.7.96 for Rs. 30 lakhs drawn on Bank of India, Jawaharlal Nehru Road Branch, Calcutta. Before the said cheque was due to be presented for encashment the accused petitioner gave a letter containing some false and frivolous story with the fraudulent intention to cheat the complainant. The complainant thereafter presented the said cheque for encashment within its validity period to their Banker, but the said cheque was dishonoured on 15.7.96 with the remark "payment stopped by the drawer". The complainant served a demand notice upon the accused petitioner on 22.7.96 demanding the payment of the cheque amount being Rs. 30 lakhs within a period of 15 days from the date of receipt of the said notice. Such demand notice was received by the accused petitioner on 23.7.96. But the accused failed to make the payment of the cheque amount within the stipulated period of 15 days. It was further alleged in the petition of complaint that the accused petitioner issued the cheque in discharge of their existing liabilities and the said cheque being presented for encashment was dishonoured by the Bank. So the accused persons have committed an offence under section 138 read with section 141 of the N.I. Act.

3. Mr. Sekhar Bose, learned Advocate appearing for the petitioner submits that the accused petitioner was carrying on transactions with the complainant/opposite party and as such certain cheques were issued to them and the same is the subject matter of a suit pending before this court.

4. Mr. Bose submits that the cheque No. was mentioned in the demand notice as 594544 dated 16.7.96 amounting to Rs. 30 lakhs. But no such cheque, bearing the number as mentioned by the complainant in the demand notice, was issued by the petitioner at any point of time. Mr. Bose further submits that in order to attract the provision of section 138 of the N.I. Act the cheque must be issued by the drawer in discharge of any debt or liability. Further one of the prerequisites of the section is that the payee or holder in due course of the cheque must make a demand for payment of the amount of money by giving a notice in writing to the drawer of the cheque within15 days of the receipt of information from the Bank regarding dishonour of the cheque. On failure to make the payment within 15 days from the date of receipt of the notice the cause of action arises. But, it is submitted by Mr. Bose, the provisions of the section are not attracted when a demand notice in respect of a cheque, which has not been issued by the drawer, is issued demanding the payment of the amount. Since the cheque bearing No. 594544 dated 16.7.96, as mentioned in the demand notice issued by the complainant/O.P. was not issued by the accused petitioner, the same cannot give rise to any cause of action leading to the initiation of the present proceeding. According to Mr. Bose since the cheque, which is the subject matter of the case, is unknown to the petitioner the present proceeding should not be allowed to continue and the same should be quashed.

5. Mr. Sumit Talukdar, learned Advocate appearing for the complainant/opposite party admits at the very out set that the cheque No. was wrongly mentioned as cheque No.594544 in the demand notice. But, according to Mr. Talukdar, only for such a mistake the demand notice should not be treated as defective a