Important points:
" While dealing with a petition under Section 482 of the Code, the Court has ordinarily to proceed on the basis of the averments in the complaint.
" The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 is that inspite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand.

1. The petitioner is the accused in the case C.C. No. 254 of 2015 on the file of the Court of the Judicial First Class Magistrate-XII, Thiruvananthapuram. The case is one instituted upon a complaint (Annexure-IV) filed under Section 142 of the Negotiable Instruments Act, 1881 (for short the Act) pertaining to an offence punishable under Section 138 of the Act. The complaint is filed against the petitioner by the second respondent. The petitioner seeks to quash the complaint by invoking the power of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code).

2. The material averments in the complaint are the following:

The complainant and the accused are close relatives. The accused borrowed an amount of Rs. 35,00,000/- from the complainant and he signed and gave a cheque dated 15.11.2014 to the complainant. The complainant presented the cheque in the bank. It was dishonoured due to insufficient funds. The complainant received intimation from the bank regarding the dishonour of the cheque on 13.12.2014. He sent a lawyer notice to the accused on 15.12.2014 informing him of the dishonour of the cheque. The accused received the notice on 17.12.2014. He did not pay the amount of Rs. 35,00,000/- due to the complainant as per the cheque. The accused sent a reply notice containing false averments.

3. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the learned counsel for the second respondent.

4. Learned counsel for the petitioner contended that no demand for payment of the amount of the cheque was made by the complainant as per the notice (Annexure-I) sent by him under clause (b) of the proviso to Section 138 of the Act and therefore, the notice is defective and the proceedings initiated against the petitioner pursuant to such notice cannot be sustained. Per contra, learned counsel for the second respondent/complainant contended that demand for payment of the cheque amount is made as per Annexure-I notice and that the requirement under clause (b) of the proviso to Section 138 of the Act had been complied with.

5. Annexure-I notice contains a recital as follows:

“It is to be noted that my client is legally entitled to realize the said amount from you and you are legally bound to pay the above said amount of Rs. 35,00,000/- (Rupees Thirty five lakhs only) to my client within 15 days from the date of this notice.......”

6. The main provision of Section 138 of the Act states what would constitute an offence. The offence is complete upon dishonour of the cheque. An offence under Section 138 of the Act is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank. The proviso appended to Section 138 imposes certain further conditions which must be fulfilled for taking cognizance of the offence. One of such conditions, as envisaged under Clause (b) of the proviso to Section 138 of the Act, is that the payee or the holder in due course of the cheque, as the case may be, shall make a demand for the payment of the amount of the cheque by giving a notice in writing to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

7. A plain reading of clause (b) of the proviso to Section 138 of the Act would indicate that the payee or the holder in due course of the cheque should make a demand for the payment of the amount covered by the cheque by giving a notice in writing to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. What is required is a demand in writing by giving a notice to the drawer of the cheque of the amount covered by the cheque. The statutory provision indicates in unmistakable terms as