1. This appeal has arisen out of the judgment passed by the XVII Metropolitan Magistrate, Saidapet, Chennai, on 15.02.2001 in C.C.No. 3947 of 1998, exonerating the respondent/accused from the charges levelled against her under Section 138 of Negotiable Instruments Act and acquitting the respondent/accused.

2. Briefly stated, the case of the prosecution is as follows:

The appellant/complainant filed a complaint stating that the respondent herein/accused had borrowed a sum of Rs.7,35,000/- and he issued a cheque bearing No.887236-Ex.P2 dated 21.01.1998, which on being presented by the complainant for encashment returned for "Funds Insufficient", hence, on his request, subsequently it was represented on 11.05.1998, but again, the said cheque returned-Ex.P3 unpaid for the reason funds "Not arranged for" and the same was intimated to the appellant/complainant by the banker vide debit advice-Ex.P4 dated 13.05.1998. So, the appellant/ complainant issued a telegram-Ex.P5 dated 14.05.1998 and sent a notice-Ex.P6 dated 20.05.1998 and the acknowledgment card dated 23.05.1998 is marked as Ex.P7. Ex.P9 is the statement of accounts of the respondent/accused. After receipt of the notice dated 20.05.1998, the respondent herein/accused has not paid that amount. Hence, he come forward with the complaint under Section 138 of Negotiable Instruments Act.

3. The learned XVII Metropolitan Magistrate had taken the private complaint on file and after examining PWs 1 to 3, Exs.P1 to P10, exonerated the respondent/accused from the charges levelled against him under Section 138 of Negotiable Instruments Act and acquitted the accused. Against that, the present appeal has been preferred.

4. The learned counsel for the appellant would contend that the trial court came to the conclusion that the notice issued under Ex.P6 dated 20.05.1998 has created only a second cause of action, since, PW1-Sowrirajan, Accountant of appellant/complainant-Arihant Finance has admitted in his evidence that when for the first time the cheque was returned dishonoured, immediately, a notice was sent, but it was returned. In such circumstances, the trial court has dismissed the case stating that the cause of action has arisen on the date of issuance of the first notice. But, the conclusion of the learned XVII Metropolitan Magistrate is erroneous, because, the first notice has not been served on the respondent/accused, so, on receipt of the second notice by the respondent/accused alone the cause of action has arisen. Here, first notice has not been served on the respondent/accused. Hence, no cause of action has arisen on the date of issuance of the first notice and therefore, the trial court has committed an error. To substantiate his case, he relied upon the decision reported in 2001 (1) Crimes 198 (SC), M/s. Dalmia Cement (Bharath Limited vs. M/s. Galaxy Traders & Agencies Limited.

5. Per contra, the learned counsel for the respondent would contend that PW1Sowrirajan, Accountant of appellant/complainant-Arihant Finance, himself has admitted that since the cheque has been dishonoured on 21.03.1998, immediately, a notice has been issued, so the cause of action arose on the date of issuance of the first notice. Subsequently, the appellant/complainant represented the cheque into the bank for encashment, which was again returned dishonoured on 12.05.1998 and after that, he issued a second notice under Ex.P6 and that has been received by the respondent/accused as per acknowledgment card-Ex.P7. Then only, the appellant/complainant filed a private complaint under Section 138 of Negotiable Instruments Act. Hence, as soon as the first notice has been issued the cause of action has arisen, which fact was considered by the trial court in a proper perspective and it came to the correct conclusion. Hence, there is no illegality or infirmity in the judgment passed by the learned XVII Metropolitan Magistrate and therefore, he prayed for the dismissal of this appeal. To substantiate h