The main legal point established in the judgment is that a notice issued under section 138(b) of the N.I. Act must contain a specific demand for payment and comply with the statutory requirements, failing which the complaint may not be maintainable.

This appeal is directed against the judgment dated 06.10.2007, passed by the learned Sessions Judge, Guwahati in Crl. A. No.41/2007 whereby the learned Sessions Judge reversed the judgment and sentence dated 11.06.2007 passed by the learned Special Judicial Magistrate, Kamrup, Guwahati in Case No.6182-c/2005 convicting the appellant who was the accused of the case u/s 138 of the N.I. Act and sentencing him to R.I. for 6 months and to pay find of Rs. 2,00,000/- in default to imprisonment for 3 months.

2. The appellant herein Manoj Kumar Narzary as complainant filed a complaint before the learned CJM, Kamrup, Guwahati which came up for trial before the learned Judicial Magistrate, First Class, Assam. As per the complaint, the complainant entered into an agreement with the accused regarding some financial transactions in connection with some construction works under the Assam State Housing Board. It was stipulated in the agreement that the appellant (complainant) was to receive Rs.1,17,000/- from the respondent (accused) and accordingly a cheque was issued by the accused which was presented in the Diphu Branch of SBI but the cheque was dis-honoured due to “stop payment” instructions issued by the accused. The complainant then issued legal notice on 05.08.2005 to the respondent accused informing about the dis-honour of the cheque but no specific demand was made for payment. Failing to receive any response, the complaint was filed against the accused. In the Trial the complainant examined 3 witnesses and the accused also examined 2 witnesses in support of his defence that no amount was due from him to the complainant and the cheque was obtained from him by force. In reply to the notice purportedly issued u/s 138(b) of the N.I. Act the accused had stated that no amount was due from him to the complainant.

3. The learned Magistrate found the accused guilty u/s 138(b) of the N.I. Act and convicted and sentenced him as stated above. Being aggrieved accused preferred the appeal before the learned Sessions Judge and the learned Sessions Judge reversed the judgment of the learned Trial court and recorded acquittal of the accused which compelled the complainant to prefer this appeal before this court contending therein that the learned Sessions Judge totally misinterpreted the provisions of Section 138(b) of the N.I. Act and the said judgment was passed under misconception of law by holding that the notice issued by him u/s 138(b) of the N.I. Act was not a demand notice within the purview of the said section.

4. I have heard Mr. P. K. Brahma, learned counsel appearing for the appellant and Mr. K. Bhattacharjee, learned counsel assisted by Mr. M. Hoque appearing for the respondent.

5. Mr. Bhattacharjee inviting my attention to the purported notice issued u/s 138(b), of the N.I. Act contends to project that the said notice cannot be a termed as a ‘demand notice’ u/s 138(b) of the N.I. Act. In this context Mr. Bhattacharjee pointed out that the respondent in his evidence in cross examination admittedly did not demand through the said notice (Exbt.3) for payment of the money of the cheque and as such, same was not a demand notice in view of the statutory requirement of section 138(b) of the N.I. Act. Relying on the judgment of the Apex Court in K.R. Indira vs. G. Adinaryana(Dr.) reported in 2003 STPL 14613 SC he submits that there was no specific demand made for payment of the amount covered by the cheque and since demand for the amount covered by the dis-honoured cheque is absent in the notice issued, the same is imperfect. The notice is also imperfect in the sense that no time period was given in the said notice for payment of the amount and instead of demanding payment, the accused was asked to contact the complainant which appears to be for a negotiated settlement. For ready reference the notice is reproduced below:-

“Legal Notice

To,

Haradhan Das,

Vill & P.O.- Bakalia, Dist – Karbi Anglond, Assam

Take notice that on instru