The judgment highlights the significance of a valid notice as the foundation of a case under Section 138 of the N.I. Act and the necessity to comply with the statutory requirements for the notice to be considered valid.

JUDGMENT

Shampa Dutt (Paul), J. - This appeal is directed against judgment and order dated 25.04.2006 passed by learned Judicial Magistrate, 4th Court, Hooghly in C.R. Case No. 224 of 1997 acquitting the accused/opposite party no. 2, of the offence punishable under Section 138 of the Negotiable Instrument Act (N.I. Act in short).

2. The case of the complainant in his petition of complaint dated 14.05.1997 in short is that both the complainant and the accused person are potato merchants in their respective locality. As the complainant had sold potato to the accused on credit, the accused issued account payee (admittedly Bearer) cheques, four in number, drawn on the State Bank of India, Tarakeswar Branch, P.O. & P.S. - Tarakeswar, District - Hooghly, bearing cheque nos. 120467 dated 28.12.1996, 120468 dated 28.12.1996, 120465 dated 19.12.1996 and 120466 dated 24.12.1996, respectively, amounting to Rs.25,000/- each to the complainant. The complainant deposited the cheque nos. 120467 and 120468 both dated 28.12.1996 with the State Bank of India, P.O. & P.S. - Tarakeswar, District - Hooghly for clearance but both the cheques were dishonoured by the concerned Bank on 07.03.1997 with the remark 'Refer to Drawer'. Thereafter, the complainant presented remaining two cheques bearing nos. 120465 dated 19.12.1996 and 120466 dated 24.12.1996 to the State Bank of India, Tarakeswar Branch for encashment but the said two cheques also were not honoured on the ground of 'payment stopped' by the drawer on 08.04.1997. The complainant then, sent a notice to the accused through his Advocate Shri Probhat Kumar Bag by registered post with A.D., on 15.04.1997 and the accused after receiving that notice dated 15.04. 1997 sent a reply dated 21.04.1997 to the lawyer of the complainant through his Advocate Sri Madan Chandra Saha, denying the material allegations in the notice. As the accused did not make payment covered by the cheques, the complainant filed the instant complaint in the Court of the learned Chief Judicial Magistrate, Hooghly under Section 138 of the N.I. Act.

3. The defence of the accused was that of innocence and being falsely implicated and that he has no debt or liability to the complainant (though not rebutted under Section 139 of the N.I. Act, by the accused).

4. Mr. Mirza Firoz Ahmed Begg, learned Advocate appointed as Amicus Curie to represent the appellant/complainant submits that during trial all relevant documents were duly proved and exhibited and PW 2 (SBI employee) proved the cheques on behalf of the appellant/complainant in Court. It is further submitted that the accused/opposite party no. 2 could not deny the case of the complainant. The Trial Court wrongly dismissed the complaint case on the point of notice without considering the evidence-on-record in the proper perspective. It is also submitted that the notice was in accordance with law and was sent by post with proper address but as the Acknowledgement Due Card (A.D. Card) was not available the Trial Court failed to consider the notice and as such the judgment and order under appeal is liable to be set aside and the accused/opposite party should be convicted accordingly.

5. Learned Lawyer appointed from the State panel, for the opposite parties, submits that the learned Magistrate rightly considered the evidence- on-record and also correctly held that as it is apparent from the copy of notice that the complainant failed to make any demand of the amount covered by the dishonoured cheques and the notice has to be read as a whole and in the notice, demand has to be made for the cheque amount and if no demand is made, the notice shall fall short of legal requirements and as such the learned Magistrate rightly acquitted the accused person from the present case.

6. The specific case of the accused/opposite party no. 2 is that he carries on business in potato and appointed the complainant as his agent for purchasing potato from the cultivators. The accused has further pleaded that th