ORDER

This petition has been filed against the order passed in C.A.No.7 of 2018 dated 22.01.2019, on the file of the learned Principal Sessions Judge, Dindigul.

2.The respondent has filed a complaint under Section 138 of Negotiable Instruments Act against the petitioner/accused and the same was taken on file as C.C.No.210 of 2007 on the file of the learned Judicial Magistrate, Nilakottai. The case ended in acquitted. Against the same, the respondent has filed an appeal in Crl.A.No.7 of 2018 before the learned Principal Sessions Judge, Dindigul. The appeal was allowed and the case in C.C.No.210 of 2007 was remanded back to the trial Court for further enquiry. Against the same, the petitioner has preferred this Criminal Revision Case.

3.On the side of the petitioner, it is stated that the claim of the respondent is that the revision petitioner borrowed a sum of Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) from the respondent. To repay the same, he executed a dated cheque 30.04.2007, for a sum of Rs.1,50,000/- (Rupees One Lakh and Fifty Lakhs only) on 09.12.2006 and the cheque was returned as “insufficient funds”. The respondent failed to prove that notice was served on the petitioner. The return notice was also not marked. There was no evidence as to the fact that the petitioner returned the legal notice. There was no record to show that the notice was sent to the correct address of the petitioner. The return cover was not produced by the respondent. The date of return of the notice was not mentioned in the complaint. It was stated that a message was intimated to the neighbours that the neighbours were not examined.

The service of notice to the petitioner is 'insufficient'. The petitioner was having no knowledge regarding the notice. The service of notice must be proved.

4.The learned counsel for the petitioner would rely upon the judgment passed by the Hon'ble Supreme Court in the case of Sarav Investment and Financial Consultancy Private Limited and another v. Llyods, Register of Shipping, Indian Office, Staff Provident Fund and another reported in (2007) 14 Supreme Court Cases 753, wherein it is stated as follows:

“Service of notice is one of the statutory requirements for initiation of a criminal proceedings. Such notice is required to be given within 30 days of the receipt of the information by the complainant from the bank regarding the cheque as unpaid. Clause (c) provides that the holder of the cheque must be given an opportunity to pay the amount in question within 15 days of the receipt of the said notice.”

5.The learned counsel for the petitioner would rely upon the judgment passed by the Hon'ble Supreme Court in the case of M.D.Thomas v. P.S.Jaleel and Another reported in (2009) 14 Supreme Court Cases 398, wherein it is stated as follows:

“7.In the present case, the notice of demand was served upon the wife of the appellant and not the appellant.

Therefore, there is no escape from the conclusion that the respondent complainant had not complied with the requirement of giving notice in terms of clause (b) of proviso to Section 138 of the Act. Unfortunately, the high Court overlooked this important lacuna in the complainant's case. Therefore, the conviction of the appellant cannot be sustained.”

6.The learned counsel for the petitioner would rely upon the judgment passed by this Court in the case of K.Ramaiah v. R.Sudhkhara Naidu reported in

2009 (3) MWN (Cr.) DCC 94, wherein it is stated as follows:

“The notice is required to be dispatched to the accused to the correct address, as its contents are required to be communicated. Thus, communication to the accused about the fact of dishonoring of the cheque and calling upon him to pay the amount within 15 days are imperative in character. Service of notice is a part cause of action for lodging the complaint.”

7.The learned counsel for the petitioner would rely upon the judgment passed by this Court in the case of K.Rajamanickam v. P.Arumugam reported in

2010 (3) MWN (Cr.) D