IMPORTANT POINT
The main legal principle established is that the sufficiency of a notice of demand for a dishonoured cheque under Section 138 of the N.I. Act does not require explicit language demanding the cheque amount, as long as the notice conveys a clear demand in line with the legislative purpose of promoting banking efficacy and cheque credibility.

JUDGMENT :

SIDDHARTHA ROY CHOWDHURY, J.

1. This appeal assails the judgment passed by learned Sessions Judge, Hooghly on 26th July, 2016 in Criminal Appeal No. 13 of 2016 recording an order of acquittal and thereby setting aside the judgment and order of conviction passed by learned Judicial Magistrate, 3rd Court, Hooghly at Chinsurah on 17th May, 2016 in Case No. CR 128/2011 under Section 138 of the N.I. Act.

2. Briefly stated, Ramkrit Jadav entered into an agreement with accused Samir Kumar Das to purchase a flat and paid a sum of Rs. 4,97,376/- towards consideration money. However, the proposed vender failed to deliver possession of the same and agreed to refund the amount received as part of consideration, in advance. Samir Kumar Das paid a sum of Rs. 1,60,000/- by cash and issued a cheque of Rs. 3,37,376/- on 31st January, 2011 in favour of the complainant Ramkrit Jadav. The cheque was drawn on Bank of India, Chinsurah Branch. The drawee presented the cheque and it was not honoured by bank due to insufficient fund. The drawee, thereafter, sent a legal notice through his lawyer to the drawer of the cheque within the statutory period. However, by giving the reply to the said notice the drawer of the cheque, who stood trial as accused person, denied his liability of repay any amount to the drawee complainant on the plea that though he issued a cheque, but he made the payment by cash before presentation of cheque.

3. The trial of the case being C.R. 128 of 2013 commenced on 13th June, 2014 when the accused person on being examined under Section 251 of the Code of Criminal Procedure, pleaded his innocence and claimed to be tried. In this case the complainant adduced evidence as PW-1 and he was the sole witness. The cheque in question was admitted as Exhibit-1 while Return memo is admitted as Exhibit-2. Notice was issued by the Complainant through his advocate, was admitted as Exhibit-3. Reply to the said notice by the drawer of cheque, received by the complainant was admitted as Exhibit-4.

4. Learned Trial Court after considering the evidence on record both oral and documentary, was pleased to hold accused Samir Kumar Das guilty of offence, punishable under Section 138 of the N.I. Act, recorded an order of conviction and sentenced him to suffer imprisonment till rising of the Court and directed the accused person to pay a sum of Rs. 4,50,000/- towards fine, in default to suffer imprisonment for six months, and on recovery of the fine amount a sum of Rs. 4,40,000/- was directed to be given to the complainant. This order of conviction was considered by learned Appellate Court in the Criminal Appeal No. 13 of 2016 and the order passed by learned Trial Court was reversed. Hence the appeal.

5. Assailing the impugned judgment Mr. Ayan Bhattacharjee, learned Counsel representing the appellant submits that learned Appellate Court, to his wisdom did not find the notice Exhibit-3, as sufficient as there was no express demand for the payment of the cheque amount. According to learned Appellate Court notice Exhibit-3 sans demand of money, as laid down under Proviso (b) to Section 138 cannot be held to be sufficient to maintain the proceeding under Section 138 of the N.I. Act and on that sole ground the order of conviction was reversed.

6. Drawing my attention to Exhibit-4 Mr. Bhattacharjee submits that the notice, Exhibit-3 conveyed a message to the drawer of the cheque in no uncertain term about his obligation to pay the cheque amount. In response to such notice, Exhibit-3, the drawer of the cheque sent a reply to the complainant claiming inter alia, though the cheque was issued to his client, the complainant dated 31st May, 2010 worth of Rs. 3,37,376/- yet it was not presented to the bank within the stipulated period of time. Thereafter, being requested by the complainant on 4th January, 2011 the drawer of the cheque paid a sum of Rs. 3,37,376/- in cash in presence of local respectables. The drawee of the cheque committed breach of trust in no