The main legal point established in the judgment is the mandatory requirement of serving individual statutory notice on the accused before filing a complaint under Section 138 of the Negotiable Instruments Act.

1. As the question that arises for consideration in both the Criminal Original Petitions is one and the same and the parties are also same, both the above Criminal Original Petitions are being disposed of by this common order.

2. A complaint has been filed by the first respondent / complainant against the petitioner and respondents 2 and 3 in Crl.O.P.No.433 of 2005 under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act") before the XIII Metropolitan Magistrate, Chennai, and the the same has been taken on file as C.C.No.6360 of 1997. The said complaint has been filed in respect of the dishonour of the following cheques, after satisfying the statutory requirements:-

Cheque Nos. Dated Amount

20039004.03.1997 Rs.1,59,296/-

20039104.04.1997 Rs.1,59,296/-

20039204.05.1997 Rs.1,59,296/-

3. A complaint has been filed by the first respondent / complainant against the petitioner and respondents 2 and 3 in Crl.O.P.no.434 of 2005 under Section 138 of the Act before the XIII Metropolitan Magistrate, Chennai, and the the same has been taken on file as C.C.No.6358 of 1997. The said complaint has been filed in respect of the dishonour of the following cheques, after satisfying the statutory requirements:-

Cheque Nos. Dated Amount

20038704.12.1996 Rs.1,59,256/-

20038804.01.1997 Rs.1,59,256/-

20038904.02.1997 Rs.1,59,256/-

4. In both the Criminal Original Petitions, the petitioner contends that the learned Magistrate ought not to have taken cognizance of the complaints, in the absence of service of statutory notice under Section 138 (b) of the Act, on the petitioner. It is contended that even in the complaints, there is no averment to the effect that the individual statutory notice was sent to the petitioner herein demanding payment of the amounts covered by the dishonoured cheques.

5. Heard the learned counsel on either side.

6. In support of the aforesaid contentions, the learned counsel for the petitioner submitted that unless a statutory notice is served, as contemplated in the Act, no cause of action will arise for filing the complaint under Section 138 of the Act. In support of the said contentions, the learned counsel based reliance on the following decisions:-

(i) (2006) 2 M.L.J. (Crl.) 134 (Y.Banumoorthy v. R.Janiikaraman). In the said decision, a learned Single Judge of this Court, in paragraph 11, has laid down as follows:-

"11. It is not in dispute that the statutory notice was not issued to the second accused at all. It is the trite law that no prosecution under Section 138 of the Negotiable Instruments Act, can be launched without issuance of the statutory notice. Therefore the proceedings as against the second accused is found not sustainable."

(ii) (2001) M.L.J. (Crl.) 519 (Harish C.Chadda v. XS Financial Services Limited). In the said decision, a learned Single Judge of this Court, in paragraph 7, has observed as follows:-

"7. .... The said presumption of guilty arises only when a notice is served under Sec. 138 (b) of the Act calling upon such person to honour the notice by making payment. Only in the event of failure to make payment within 15 days from the receipt of the notice, the cause of action for prosecuting such director arises....".

In the very same decision, in paragraph 7, it has been laid as follows:-

"Therefore, I hold that when the offence is committed by a company and by virtue of Sec. 141 of the Act and every person who at the time the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, are presumed to be guilty of the offence, those persons shall be also entitled to the notice under Sec. 138 (b) of the Act. In the absence of such notice there cannot be cause of action against those directors as they had no knowledge of the offence and there was no opportunity for them to exercise all due diligence to prevent the commission of such offence."

In the very same decision, in paragraph 8, it has bee