The mandatory nature of giving notice under Section 138(b) and (c) of the Negotiable Instruments Act, and the requirement for the notice to be served to the proper address, are essential for establishing a cause of action for filing a complaint under Section 138 of the Act.

1. The Appellant/Complainant has focused the instant Criminal Appeal before this Court as against the Judgment passed by the Learned IV Metropolitan Magistrate, George Town, (Fast Track Court), Chennai in C.C. No. 1277 of 2013 dated 25.08.2015.

2. Heard the Learned counsel for the Appellant/Complainant and the Learned counsel for the Respondent/Accused.

3. The Learned Judge while passing the impugned judgment in C.C. No. 1277 of 2013 dated 25.08.2015 at para 19 had observed that as per Section 138(b) of the Negotiable Instruments Act, notice was not sent to the proper address in regard to demand of money towards cheque and also that the said notice was not served on the Accused. Also, the trial Court had opined that since the ingredients of Section 138 (b) and (c) of the Negotiable Instruments Act were not satisfied, a case could not be filed in respect of an offence under Section 138 of the Act.

4. As far as the present case was concerned, since as per Section 138(b) of the Negotiable Instruments Act, notice was not issued to the proper address of the Accused and also that the said notice was not properly served, the trial Court had observed that a case could not be filed in respect of the offence under Section 138 of the N.I. Act and hence, there was no necessity to go into other aspects of the case and consequently, found the Respondent/ Accused not guilty and acquitted him under Section 255(1) of the Criminal Procedure Code.

5. Assailing the legality, validity and correctness of the judgment of Acquittal dated 25.08.2015 in C.C. No. 1277 of 2013 passed by the trial Court, the Appellant/ Complainant has filed the instant Criminal Appeal before this Court, primarily contending that a statutory notice dated 23.01.2013 namely, Ex.P14 was issued to the Respondent/Accused in terms of Section 138 (b) of the N.I. Act and in fact, this was the last known address of the Accused to which the invoices were raised and indeed, the notice was returned with an endorsement left.

6. The Learned counsel for the Appellant/Complainant relies on the decision of the Hon'ble Supreme Court in C.C. Alavihaji Vs. Palapetty Muhammed and another, 2007 STPC (DC) 952 SC, wherein at para 17, it is observed as under:

17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, with ... 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.

7. Lastly, it is the submission made on behalf of the Appellant/Complainant that the trial Court had erroneously held that there was no cause of action for filing the complaint by the Appellant in C.C. No. 1277 of 2013.

8. Per contra, it is the contention of the Learned counsel for the Respondent/Accused that in the instant case, Ex.P14/notice was not serv