ORDER :

Anubha Rawat Choudhary, J.

1. Heard Mr. Mahesh Tiwari, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Kalyan Banerjee, learned counsel appearing on behalf of opposite party No.-2.

3. Nobody appears on behalf of the opposite party-State.

4. The present criminal revision application has been filed by the petitioner for setting-aside the judgment dated 25.03.2009 passed by the learned Additional Sessions Judge, Fast Track Court No.-1, Dhanbad in Criminal Appeal No. 170/08, whereby the learned appellate court has been pleased to set-aside the order of sentence and judgment of conviction dated 12.06.2008 passed in Complaint Petition No. 2086/04 by the learned Judicial Magistrate, 1st Class, Dhanbad.

5. The learned trial court had convicted the accused (opposite party No.-2 herein) for offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment of six months and also to pay a fine of Rs. 1,84,370/-, which was equivalent to the cheque amount and in default of payment of fine, the opposite party No.-2 was further directed to undergo simple imprisonment for one month.

Arguments on behalf of the petitioner

6. Learned counsel appearing on behalf of the petitioner submits that the impugned judgment passed by the learned appellate court, is perverse and is fit to be set-aside. He submits that the judgment passed by the learned trial court is a well-reasoned judgment and the learned appellate court has set-aside the same on the ground that the notice regarding bouncing of cheque was not in accordance with proviso (b) of Section 138 of the Negotiable Instruments Act and that the notice itself was defective. The learned counsel submits that the notice regarding bouncing of cheque is required to be read as a whole and the learned appellate court has selectively read the notice to hold it defective. The learned counsel further submits that upon perusal of the notice, it is apparent that an agreement was entered into between the parties and pursuant to the agreement, the cheque was issued and the cheque bounced. In spite of notice regarding bouncing of the cheque, the opposite party No.-2 did not pay the cheque amount and consequently, the complaint case was filed. The learned counsel has also submitted that before the learned trial court, no ground was taken that the notice itself was defective and the opposite party No.-2 had taken a ground that the cheque itself was lost. The learned counsel for the petitioner has referred to the notice which was marked as Ext.-7 before the learned court below.

7. The learned counsel has also referred to a judgment passed by the Hon’ble Supreme Court reported in 2008 (1) Eastern Criminal Cases 6 (SC) (M/s. Rahul Builders vs. Arihant Fertilizers & Chemicals and Others) and has referred to paragraph-11 of the said judgment, which in turn refers to another judgment passed by the Hon’ble Supreme Court reported in (2000) 2 SCC 380 to submit that the notice is to be read as a whole and it is submitted that upon correct reading of the notice, the basic requirement of notice under section 138 of the Negotiable Instruments Act is fulfilled .

Arguments on behalf of opposite party No.-2

8. Learned counsel appearing on behalf of opposite party No.-2, on the other hand, has opposed the prayer and submitted that upon perusal of the entire notice, no demand for payment of the cheque amount was ever made by the petitioner in the notice, rather in the notice, the petitioner had asked the opposite party No.-2 just to meet the petitioner within a period of ten days. He further submits that the notice refers to one cheque bearing Cheque No. 794335 amounting to Rs. 5,000/- which was dated 17.10.2004 and the complaint case was filed in relation to bouncing of cheque bearing No. 0689316 dated 05.11.2004, which was amounting to Rs. 1,84,370/-. He submits that the notice itself being vague, the impugned order passed by the learned appellate court acquitting the opposi