Failure to issue a statutory notice under Section 138 of the NI Act invalidates the prosecution against the accused.

ORDER

The petitioner is the 5^th accused in C.C.No.3219/2016 on the file of the Court of the Judicial First Class Magistrate (NI Act cases), Ernakulam, which has been filed by the respondents 1 and 2 against six accused persons, including the petitioner, alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act , 1881, (‘NI Act’, in short).

2. It is the case of the respondents 1 and 2 in the complaint that the 1^st accused is the Managing Partner of the 6th accused firm and accused 2 to 5 are its partners. In discharge of legally enforceable debt, the 1^st accused issued a cheque in favour of the 1^st respondent, which got dishonoured due to insufficiency of funds. Although statutory lawyer notice was issued to the accused no amount has been paid. Thus, the accused have committed the above offences.

3. Heard.

4. The petitioner’s principal contention is that, although he has been arraigned as 5^th accused in the complaint, no statutory demand notice was served on him, which is in violation of Section 138 (c) of the NI Act. InRadhakrishnan and another v. State of Kerala and another [2018 (4) KLJ 64] and plethora of judgments, this Court has held that it is mandatory that the complainant has to issue statutory demand notices to all the accused.

5. Document No.7 shows that a copy of the lawyer notice dated 29.10.2012, is only produced with the complaint. The said notice is produced as Annexure 2 with the Crl.M.C.

6. Annexure 2 notice shows that it is only addressed to the 1^st accused, the Managing Partner of the 6th accused firm. Therefore, admittedly, there was no statutory demand notice issued to the petitioner, which makes the prosecution, as against the petitioner, fatal.

7. In light of the non-issuance of the statutory demand notice to the petitioner, I am convinced and satisfied this is a fit case to exercise the inherent powers of this Court under Section 482 of he Code of Criminal Procedure and quash the complaint against the petitioner.

In the aforesaid circumstances, I allow the Crl.M.C, by quashing Annexure 1 complaint (C.C.No.3219/2016) on the file of the Trial Court, as against the petitioner (5^th accused) in the above case.

Sd/-