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Judgment
Arunachalam, J.—Petitioners are the accused in C.C.No.70 of 1990, pending on the file of Judicial Magistrate No. VI, Coimbatore. They
are being prosecuted in the aforestated Calendar case on a private complaint preferred by the respondent, alleging that they have committed an
offence punishable u/s 138 of the Negotiable Instruments Act as amended by Banking, Public Finance Institutions and Negotiable Instruments
(Amendment) Act, 1988 (Act 66 of 1988).
The allegations in the complaint show that the respondent is a partnership firm having its Registered office at Peelamedu Coimbatore. The first
petitioner is a firm and petitioners 2 and 3 are its partners. The petitioners placed an order with the respondent for supply of electrode machines to
a total value of Rs.5,43,491.70. In respect of such dealing, a sum of Rs.1,11,244.70 was due. The petitioners are stated to have issued four
cheques dated 21.11.1989, 25.11.1989, 26.12.1989 and 1.1.1990 drawn on Bank of Madura Ltd., Koti, K.J. Market, Hyderabad in favour of
the respondent for Rs. 25,000/-, Rs. 30,000/-, Rs. 2,000/- and Rs. 15,247/- respectively. The cheques were presented on 22.11.1989,
27.11.1989, 26.12.1989 and 2.1.1990 and they were dishonoured. On the basis of the aforestated facts, this prosecution was initiated.
In this petition filed u/s 482 Cr.P.C., to call for the records and quash the pending prosecution as not maintainable and without jurisdiction, Mr.
Ashok Kumar, learned counsel representing the petitioners, contended that the payee had not made a demand for the payment of the amount
mentioned in the four cheques by giving a notice in writing to the petitioners, within 15 days of the receipt of information from the Bank regarding
the non-honouring of the cheques and that would be sufficient to exclude the ingredients of Section 138 of the Act, aforestated.
Learned counsel appearing on behalf of the respondent fairly conceded that subsequent to the return of the cheques, no notice as contemplated
u/s 138(b) of the said Act was issued. Proviso (b) to Section 138 of the Act reads as follows:
Provided that nothing contained in this section shall apply unless-
The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving
a notice in writing to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the
cheque as unpaid;
It will also be necessary to peruse proviso (c) to section 138, which reads as follows:
Provided that nothing contained in this section shall apply unless-
The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be to the holder in due course
of the cheque, within fifteen days of the receipt of the said notice.
The proviso makes it clear that nothing contained in Section 138 of the said Act shall apply, unless proviso (b) had been complied with.
Admittedly, proviso (b) had not been complied with. On that sole ground, the pending prosecution cannot be allowed to survive any longer.
Accordingly, this petition is allowed and all further proceedings in C.C.No.70 of 1990, on the file of the Judicial Magistrate No. VI, Coimbatore
shall stand quashed.