B. SUDHEENDRA KUMAR, J.

1. The accused in S.T. No. 244 of 2006 on the files of the Court of the Judicial Magistrate of First Class, Parappanangadi has filed this revision petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 138 of the Negotiable Instruments Act (for short 'the N.I. Act).

2. Heard.

3. The prosecution allegation is that the revision petitioner issued Ext.P1 cheque in favour of the complainant towards the discharge of his liability to the complainant. The complainant presented the said cheque for encashment. However, the same was dishonoured due to insufficiency of funds in the account of the revision petitioner. Statutory notice was received by the revision petitioner.

4. Before the trial court, PW1 was examined and Exts.P1 to P5 were marked for the complainant. DW1 was examined and Exts.D1 and D2 were marked for the revision petitioner.

5. PW1 had given the evidence in tune with the contentions in the complaint. The learned counsel for the revision petitioner has argued that since no notice as contemplated under proviso(b) to Section 138 of the N.I. Act was issued prior to the filing of the complaint, the conviction and sentence passed by the courts below, cannot be sustained.

6. The service of notice demanding the cheque amount is necessary for maintaining a complaint. Unless a notice is served in conformity with proviso (b) to Section 138 of the N.I. Act, the complaint cannot be maintainable. One of the conditions to maintain the complaint is service of notice making demand of the payment of the cheque amount. Therefore, the demand for the cheque amount is sine quo non to maintain the complaint, as is evident from proviso (b) to Section 138 of the N.I.Act.

7. The Apex Court in Rahul Builders v. Arihant Fertilizers and Chemical, 2007 (4) KLT 977 (SC)) held in paragraph 10 thus:-

"Service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main Section would not. Unless a notice is served in conformity with Proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable. The Parliament while enacting the said provision consciously imposed certain conditions. One of the conditions was service of a notice making demand of the payment of the amount of cheque as is evident from the use of the phraseology "payment of the said amount of money". Such a notice has to be issued within a period of 30 days from the date of receipt of information from the bank in regard to the return of the cheque as unpaid. The statute envisages application of the penal provisions. A penal provision should be construed strictly; the condition precedent wherefor is service of notice. It is one thing to say that the demand may not only represent the unpaid amount under cheque but also other incidental expenses like costs and interests, but the same would not mean that the notice would be vague and capable of two interpretations. An omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not sub-serve the requirement of law."

8. A learned Single Judge of this court in Aramughan v. Sudheesh Kumar, (2009 (2) KLT 481) held that a mere intimation of dishonour of cheque is not sufficient compliance of the demand for payment as contemplated under proviso (b) to Section 138 of the N.I. Act.

9. In Central Bank of India v. M/s. Saxons Farms, (AIR 1999 SC 3607), the Apex Court held that in the notice prescribed under proviso (b) to Section 138 of the N.I. Act, a demand for payment of the amount of the cheque must be made. It is not necessary that the demand must be by particular words. There is no form for making the demand. However, the demand must be clear as required under proviso (b) to Section 138 of the N.I. Act. In Central Bank of India (supra), the demand was made i