1. Leave granted.

2. The drawer of a cheque clutches on a straw for wriggling out of the clinch of a criminal prosecution, he is caught in, but the straw is too fragile to be of any help to him. He thought that a previous notice sent by the payee of the cheque after it was once bounced was enough to knock off the prosecution based on a second presentation and second bouncing of the cheque but neither the trial court nor the High Court favoured the accused in his endeavour to secure a discharge from the case on the said ground. Thus, he has come up with this appeal.

3. Respondent company filed a complaint before the court of a Chief Metropolitan Magistrate against three appellants for the offence under S.138 of the Negotiable Instruments Act (for short'the N.I. Act') on the following inter alia allegations:

The third appellant is the Managing Director of the first appellant company of which the second appellant is Vice President. A cheque in a sum of Rs. 50 Lacs and another cheque for above Rs. 3 Lacs have been drawn by the first appellant in favour of the respondent complainant. The said cheques were presented before the Oriental Bank of Commerce but they were dishonoured by the Bank as per memo dated 23.2.1996. Notice was sent to the appellants on 2.3.1996 calling upon them to pay the amount. As the appellants did not pay the amount within the statutory period, the complaint was filed on 11.4.1996.

4. The stand of the appellants is this: the cheque was earlier presented by the payee and then it was dishonoured by the Bank and thereafter a notice was issued to the drawer on 1.12.1995, but the payee did not file a complaint within one month of the expiry of 15 days after the said notice and hence he cannot create one more cause of action by presenting the cheque once again. At any rate the complaint filed on 11.4.1996 is beyond the time prescribed by law and consequently the court is debarred from taking the cognizance of the offence upon the said complaint, contended the appellants. In support of the said contentions appellants cited the decision of this Court in Sadanandan Bhadran v. Madhavan Sunil Kumar (1998 (2) KLT 765 = JT 1998 (6) SC 48 =1998 (6) SCC 514).

5. The trial court repelled the said contention of the premise that the notice issued on 1.12.1995 was under S.434 of the Companies Act which cannot be treated as a notice under S.138 of the N.I. Act. This position of the trial court was upheld by the learned Single Judge of the High Court on the strength of the following reasons:

"A notice under S.433 and 434 of the Companies Act cannot be treated as a notice under S.138 of the Act. Therefore, the contention of the learned Counsel for the petitioners that notice dated 1.12.1995 should be taken as notice under S.138 of the Act is unsustainable. In the case on hand, notice under S.138 of the Act was dated 12.3.1996. It is this notice which is in accordance with the provisions of S.138 that proceeding can be set into motion by giving 15 days time to comply with the demand and thereafter within one month file a complaint. The period, if calculated from the issue of notice dated 12.3.1996, brings the complaint well within the period of limitation. Therefore, from the facts of the case alleged in the complaint, the position is clear that no exception can be taken against the order of the Magistrate taking cognizance of the offence under S.138 of the Act against the petitioners".

6. Learned Counsel for the appellants contended that the High Court went wrong in saying that a notice under S.433 and 434 of the Companies Act cannot be treated as a notice under S.138 of the N.I. Act. Any notice containing a demand of payment of the amount covered by the dishonoured cheque can as well be a notice under S.138 of the N.I. Act, according to him.

7. S.433 and 434 of the Companies Act are provisions dealing with the cases in which the Company may be wound up by a Court. S.434 has to be read in association with S.433(a) of the said