The main legal point established in the judgment is the mandatory requirement of giving notice to the drawer before filing a complaint under Section 138 of the Negotiable Instruments Act and the need for service of notice to complete the commission of the offense.

The Petitioner, who is arrayed as the accused in CC.No.176/2006 on the file of the learned Judicial Magistrate I, Pollachi, Coimbatore, has filed this Criminal Original Petition to quash the said proceedings.

2. The brief facts, which are essential for the disposal of this Criminal Original Petition, are as follows:-

The Petitioner had borrowed a loan of Rs.2,90,000/-from the Respondent on 9. 2003 and he is said to have executed a promissory note, promising to repay the loan amount with interest at 18% p.a. Since he failed to repay the amount, the Respondent is said to have approached him for repayment and it is stated that towards discharge of the loan amount, the Petitioner had issued a cheque bearing No.383534 for a sum of Rs.3,12,500/- drawn on Syndicate Bank.

3. When the said cheque was presented for encashment with the Respondent Bankers namely Karur Vysya Bank on 2. 2004, the same was returned with an endorsement "funds insufficient" on the same day. The Respondent is said to have approached the Petitioner and demanded the Petitioner to pay the cheque amount on several occasions, but he did not pay the cheque amount and hence, the Respondent had issued a statutory notice on 12. 2004 through his lawyer, intimating the Petitioner that the cheque had been returned with an endorsement "funds insufficient". It is alleged in the complaint that notice had been returned as refused on 12. 2004. Thereafter, the Respondent has filed the private complaint under Section 138 of the Negotiable Instruments Act before the Judicial Magistrate, Udumalpet and the same had been transferred at the instance of the Respondent to the Judicial Magistrate I, Pollachi.

4. Mr.Ramalinga Gounder, the learned counsel for the Petitioner would contend that the notice of demand made under Section 138 of the Negotiable Instruments Act has not been served on the Petitioner and in fact on the alleged date of refusal of the legal notice i.e. on 12. 2004, the accused was under the judicial custody in respect of another police case. He would submit that no cause of action had arisen for prosecution of the Petitioner for the dishonour of the cheque in question under Section 138 of the Negotiable Instruments Act. He would further contend that there is absolutely no prima face case for issuance of summons by the learned Magistrate as mandatory provision of law has been violated and if the criminal proceedings are allowed to continue, then it would only amount to abuse of process of court.

5. The learned counsel for the Petitioner drew the attention of this court to the certified copy of the sworn statement filed in the typed set of papers, wherein it is stated that the notice demanding payment has been returned on 12. 2004 as refused to receive by the accused. It is the categorical case of the Petitioner that he was not residing at Door No.881, Narasingapuram, Krishnapuram Post, Udumalpet and was residing only at KNK.Stone Crusher Site in S.No.516/1B, Myvadi Village in Udumalpet Taluk. The notice sent by the complainant has been issued only to the address at Door No.881, Narasingapuram, Krishnapuram Post, Udumalpet and the same has been returned with a postal endorsement "no such addressee" and therefore, it is returned to the sender on 12. 2004. The certified copy of the postal endorsement had also been filed in the typed set of papers. Again when the notice had been sent from the court of the Judicial Magistrate to the same address, it was returned with the same endorsement, but the learned Judicial Magistrate without verifying as to whether the address given in the complaint is correct or not, has taken the case on his file.

6. According to the Petitioner, there is no material to show that he ever resided at Door No.881, Narasingapuram, Krishnapuram Post, Udumalpet at any point of time and suppressing the said fact, the Respondent has given a false information as if the notice has been returned by the addressee as refused. The learned counsel for t