K. A. MOHAMED SHAFI J.

These M.Cs. are filed by the accused in C.C. Nos. 464 of 1998 and 376 of 1999 pending before the judicial First Class Magistrate's Court-V, Thiruvananthapuram and Chief Judicial Magistrate's Court, Thiruvananthapuram, respectively, to quash the entire proceedings under section 482 of the Criminal Procedure Code, 1973.

On the basis of annexure B complaints filed by the complainant, who is the second respondent in Crl. M.C. No. 2719 of 1999 and the first respondent in Crl. M.C. No. 3383 of 1999, the petitioner is standing trial for the offence punishable under section 138 of the Negotiable Instruments Act before the Judicial First Class Magistrate's Court-V, Thiruvananthapuram and Chief Judicial Magistrate's Court, Thiruvananthapuram, respectively. Annexure A is the copy of the notice sent by the complainant intimating the petitioner about the dishonour of the cheques and calling upon him to pay the amount.

The petitioner has contended that annexure A notice sent on behalf of the drawee of the cheque is not in conformity with proviso (b) to section 138 of the Negotiable Instruments Act, that annexure B complaint does not disclose the ingredients of the offence punishable under section 138 of the Negotiable Instruments Act and that the notice is issued not as per the instructions given by the payee or the holder in due course as stipulated in proviso (b) to section 138 of the Negotiable Instruments Act and is issued as per the instructions given by the power of attorney holder of the payee of the cheque and, therefore, the notice is invalid in law.

Proviso (b) to section 138 of the Negotiable Instruments Act stipulates that the payee or the holder in due course of the cheque, as the case may be, should make a demand for the payment of the cheque amount by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. In this case there is no contention that annexure A notice is not sent within 15 days of the receipt of information from the bank regarding the dishonour of the cheque. No particular form of notice is prescribed under proviso (b) to section 138 of the Negotiable Instruments Act. It only stipulates that a notice in writing should be given to the drawer of the cheque within 15 days of the receipt of information from the bank regarding the return of the cheque unpaid, demanding payment. It is the statutory duty of the drawer to pay the amount within 15 days of the receipt of notice under proviso (c) to section 138 of the Negotiable Instruments Act. In annexure A notice the drawer of the cheque, the petitioner herein is called upon to pay the cheque amount within 15 days from the date of receipt of the notice. Therefore, annexure A notice is perfectly in compliance with proviso (b) to section 138 of the Negotiable Instruments Act. Therefore, this contention raised by the petitioner is absolutely unsustainable.The next contention raised by the petitioner is that annexure A notice is issued not by the payee or the holder in due course as stipulated in proviso (b) to section 138 of the Negotiable Instruments Act and it is issued by the advocate on instructions given by the power of attorney holder of the payee of the cheque. Therefore, according to the petitioner, annexure A notice is illegal and invalid since under proviso (b) to section 138 of the Negotiable Instruments Act it is incumbent upon the drawee or the holder in due course, as the case may be, to issue notice, and the power of attorney holder of the payee is incompetent to issue notice under proviso (b) to section 138 of the Negotiable Instruments Act.

In support of this contention counsel for the petitioner relies upon the decision in T. C. Mathai v. District and Sessions Judge, Thiruvananthapuram, Kerala 1999 3 SCC 614 wherein it has been held that under the Criminal Procedure Code the appearance of the accused cannot be made th