The failure to issue a proper legal notice under Section 138(c) of the NI Act, stating the correct amount, is fatal to the complainant's case, leading to dismissal of the appeal.

JUDGMENT :

The appellant / complainant has filed a private complaint as against the respondent / accused before the Fast Track Court No.II (Magisterial Level), Nagercoil, for the offence under Section 138 of the Negotiable Instruments Act. The complaint was tried in STC No.383 of 2018 and it was dismissed by the learned Judicial Magistrate, Fast Track Court No.II, Nagercoil by judgment dated 13.07.2018. As against the judgment of the trial Court, the complainant has filed an appeal before the Principal Sessions Judge, Kanyakumari District and the same was transferred to this Court pursuant to the orders of the Hon'ble Full Bench and listed for final hearing.

2. For sake of convenience the parties are referred herein, as per their ranks before the trial Court.

3. The case of the complainant is that on 27.02.2012 the accused borrowed a sum of Rs.1,00,000/- (Rupees one lakh) from the complainant promising to repay the same within three months and the accused issued a cheque bearing No.0977032 of her account at State Bank of India, Pazhavoor Branch dated 27.09.2012 instructing the complainant to present the cheque and collect the amount. On 28.09.2012 the complainant presented the cheque in Syndicate Bank, Nagercoil branch for collection. But the cheque was dishonoured and returned on 10.10.2012 as funds insufficient. Therefore, on 18.10.2012 the complainant sent a legal notice to the accused intimating the dishonour of cheque. Though the accused received the notice, she had not sent any reply. Therefore he has instituted proceedings under Section 138 of the NI Act.

4. The learned counsel for the appellant / complainant submits that while sending notice to the accused, the amount was wrongly mentioned as Rs.25,000/- instead of Rs.1,00,000/- and the same was taken as a ground by the trial Court to dismiss the complaint. According to him, there is no correction, addition or omission in the cheque Ex.P1. The cheque Ex.P1 was issued for a sum of Rs.1,00,000/- and it was presented for collection before his banker on 28.09.2012 and it was returned as 'insufficient funds' on 10.10.2012. The complainant had sent a legal notice calling upon the accused to repay the cheque amount by notice dated 18.10.2012 and the accused received the notice on 19.10.212. However she has failed to pay the amount and has not sent any reply to the said notice. Therefore according to the learned Counsel the essential ingredients for constituting the offence under Section 138 of the NI Act have been proved sufficiently by the complainant and the presumption is in favour of the complainant as per Section 139 of the NI Act.

5. The learned Counsel for the respondent / accused submits that the presumption mandated under Section 139 of the NI Act, includes the presumption of existence of legally enforceable debt or other liability. In the event the cheque has been returned by the bank unpaid, the payee or the holder of the cheque in due course may make demand for payment of the said amount of money by giving notice in writing to the drawer of the cheque within 30 days as required under Section 138(c) of the NI Act. The legal notice dated 18.10.2012 has been sent demanding Rs.25,000/- as the amount borrowed by the accused from the complainant. Though the complainant claimed that it was mistakenly mentioned as Rs.25,000/-, no rectification notice was sent by the complainant. The complainant PW1 has also admitted that he has wrongly mentioned the amount as Rs.25,000/- in the legal notice Ex.P3. Therefore, according to the learned Counsel for the accused, the complainant has failed to comply with the requirements as required under Section 138 (c) of the NI Act and that defect was considered in the light of the Hon'ble Supreme Court in Suman Sethi Vs Ajay K.Churiwal (Criminal Appeal No.113 of 2000) and therefore, the trial Court has acquitted the respondent / accused. According to the learned Counsel for the accused, the accused has borrowed a sum of Rs.25,000/- from the comp