Trial Court must go through entire materials for ascertaining whether ingredients are made out prima facie to constitute offence u/s 138.

These petitions are filed seeking to quash the criminal proceedings in C.C.Nos49 and 50 of 2007 on the file of the learned Judicial Magistrate I, Walajah.

2. The petitioner is the accused in those cases filed by the respondent under section 138 of the Negotiable Instruments Act.

3. The respondent/complainant has contended in the complaint laid under section 138 of the Negotiable Instruments Act that the complainant supplied goods to the accused on the strength of the promise made by them, but, the accused made only a meager payment towards the supply of goods. When the complainant demanded payment continuously, the accused asked the complainant to deposit the subject cheques. The subject cheques have been issued by the accused in continuation of the cheques given by the accused on earlier occasions. The subject cheques were deposited by the complainant on 111. 2005 with the complainants bankers for realization. But, the cheques were returned with an endorsement "insufficient funds" in the accounts of the accused. The complainant sent a legal notice through their counsel demanding the accused to pay the amount in the subject cheques within fifteen days from the date of receipt of the notice, but, the accused evaded to receive the notices sent to his addresses at Kolkatta and also at Delhi. Therefore, the service of notice is deemed to be proper service. The complaint also seeks payment of Rs.3,00,000/= from the fine amount that may be imposed under section 357 of the Code of Criminal Procedure. With the aforesaid pleadings and averments, the complaints were lodged by the petitioner.

4. Heard the arguments of the learned counsels appearing on either side.

5. Learned counsel appearing for the petitioner would submit that there was virtually no pleading in the complaints that the cheques were issued for the subsisting liability. There is no averment in the complaint that the accused failed to pay the cheque amount. In the last paragraph of the complaint, the complainant has sought for only a sum of Rs.3,00,000/= being the cheque amount. Therefore, the ingredients to charge a person under section 138 of the Negotiable Instruments Act have not been averred to in the complaint. Therefore, the complaints are liable to be dismissed.

6. Learned counsel appearing for the respondent/complainant would contend that the entire pleadings would prima facie show that there was some commercial transaction between the parties and the accused issued cheques for the dues payable by the accused to the complainant. The criminal prosecution was laid as against the petitioner/accused only after making sincere attempts to serve statutory notice on the accused. The return of the notices addressed to the proper addresses of the accused shall be deemed to be proper service. The claim of lesser compensation from out of the fine amount that may be levied under section 357 of the Code of Criminal Procedure does not amount to restricting the liability of the accused under the subject cheques.

7. The complaint would read that there had been business transaction between the complainant and the accused and the accused who received supply of materials from the complainant did not make proper payment for the goods supplied. The issuance of the cheque has been adverted to in para 14 of the complaint. The averment as to the subsisting liability is found in paragraphs 2 and 3 of the complaint. Of course, the complainant has not specifically stated in the complaint that the accused failed to pay the cheque amount on receipt of the statutory notice. Here is a case where the statutory notices were sent to the addresses of the accused at Kolkatta and also at Delhi, but, quite unfortunately, they returned with the endorsement "addressee left for out Station". Of course, the complainant has stated that the return of the notice with the aforesaid endorsement shall be deemed as proper service of statutory notice. It is not the case of the complainant that the ac