The failure to serve the notice of demand within 15 days from the date of dishonour of the cheque, as required by Section 138(b) and (c) of the Negotiable Instruments Act, is fatal to the prosecution's case.

Petitioner Adhikari being the accused in C.C. No. 6296 of 1991 on the file of the XV Metropolitan Magistrate, George Town, Madras, for the offences under S. 138 of the Negotiable Instruments Act, found guilty and convicted thereon, however who lost the appeal in Criminal Appeal No. 203 of 1994 on the file of the Additional Sessions Judge, Madras, on 24-4-1995 has come forward with this revision challenging the impugned judgment of the learned Sessions Judge confirming the judgment and sentence recorded by the trial Court as above referred

2. For the purpose of his business the revision petitioner had a loan of Rs. 20, 000/- from the respondent herein and for the return of the same he had given a cheque to the respondent on 5-7-1991 which upon accounting was returned as dishonoured. On appraising of the said fact, the amount had not dishonoured was 27-8-1991. However on 2-9-1991 a notice on behalf of the respondent was given to the revision petitioner demanding the payment of the said sum as his liability, which liability has been defined under Act, which was returned as unserved with the endorsement 'not found' on 20-9-1991. Hence the respondent filed the complaint. After having taken the complaint on file and completing all the judicial formalities and recorded the adduced legal evidence on behalf of both parties, the learned trial Magistrate found the revision petitioner/accused guilty for the offence under S. 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of one year and also to pay a fine of Rs. 5, 000/- in default to undergo simple imprisonment for a period of one year further. In the appeal preferred by the accused/revision petitioner before the learned Additional Sessions Judge, Madras, in C.A. No. 203 of 1994, on 24-4-1995 learned Appellate Judge after having re-appraised the whole evidence, dismissed the appeal by confirming the conviction and sentence recorded by the trial court. Aggrieved at this the above revision has been preferred challenging the impugned judgment rendered by the learned appellate Judge challenging its propriety, legality and validity

3. Dr. G. Krishnamurthy, learned counsel appearing on behalf of the petitioner during the course of his argument brought to my notice the finding of the learned Appellate Judge that sub-clauses (b) and (c) of S. 138 of the Negotiable Instruments Act has not been followed in this case and that both courts below have totally overlooked the said aspect and that the non-compliance of the legal mandate goes to the root of the case. On this ground, the learned counsel challenges the propriety and correctness of the order passed by the courts below

4. Section 138 of the Negotiable Instruments Act, 1881 as amended by Act 66 of 1988, reads as follows :-

"138. Dishonour of cheque for insufficiency, etc. of funds in the account - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be demand to have committed an offence and shall without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both; provided that nothing contained in this section shall apply unless -

a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said