Notice which clearly mentioned amount under liability satisfy the requirements.

Per R. REGUPATHI, J.

1. The petitioner is accused of for the offence punishable under Section 138 of Negotiable Instrument Act, in S.T.C.No.987/2005 pending on the file of the Judicial Magistrate No. 1, Tirunelveli, Tirunelveli District.

2. The learned counsel for the petitioner submits that in the statutory notice, it has been stated as follows :

“Please take notice that if you fail to settle the matter within 15 days of receipt of this notice my client will be constrained to take court action against you and you will be held liable and responsible and for all the consequences.”

The learned counsel for the petitioner contended that unless the demand with regard to the amount to be given is unambiguously made in the notice, it will be difficult for the accused to make payment. To substantiate his claim, the learned counsel for the petitioner relied on the decision of the Supreme Court reported in K. R. Indira v. Dr. G. Adinarayan (2003) 8 SCC 300 : 2003(4) CTC 252. The relevant portion of the said decision is extracted below :

“ 11. ……………the notice in question is not separable in that way and that there was no specific demand made for payment of the amount covered by the cheque. We have perused the contents of the notice. Significantly, not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand for the loan amount and not the demand for payment of the cheque amount; nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount, the non-compliance with such a demand only being the incriminating circumstances which expose the drawer for being proceeded against under Section 138 of the Act.”

The learned Counsel for the petitioner further relied on the decision of this Court reported in Poppys Spinning Mills (P) Ltd., rep by Authorised Agent, P. Murugan, Tirupur v. C. Visalakshi, Proprietrix, Sri Karpaga Vinayagar Textiles, Tirupura and another (2005) MLJ (Crl) 243 wherein it has been held as follows:

“Needless to say that on the basis of the defective notice, neither the proceedings under Sect. 138 of the Act can be launched or maintained, nor the accused can be found guilty.”

3. Per contra, the learned counsel for the respondent submits that the notice has been given in accordance with law and there is no ambiguity in the notice. The entire notice as such may have to be read together and that the learned counsel for the petitioner attempted to make out a point by reading the last paragraph alone. To substantiate his contention the learned counsel for the respondent relied on the decision of the Supreme Court reported in Central Bank of India another v. Sexons farms and others AIR 1999 SC 3607: 1999 SCC (Crl) 411: (2000) MLJ (Crl.) 356 wherein it has been held as follows:

“The object of the notice is to give a chance to drawer of the cheque to rectify his omission and also to protect a honest drawer.”

4. I have considered the rival contentions and perused the material available on record. In paragraph 3 of the notice, it has been stated that “You have borrowed a sum of Rs.2,50,000/- (Two Lakhs Fifty Thousand) from my client on many occasions for that you have issued a cheque on 7/12/2004 dated 7/12/2004 of Indian Over Seas Bank, Palayamkottai (067) Tirunelveli 2 under cheque No. 701132 dated 7/12/2004 and my client presented the same for collection through her bankers that is State Bank of India, Palayamkottai, to my clients surprise and shock the cheque has been bounced due to insufficient funds.”