THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.8116 of 2011 ORDER: Petitioner approached this Court with a prayer to quash the proceedings initiated against him in C.C.No.383 of 2011 on the file of X Additional Chief Metropolitan Magistrate, Secunderaba, wherein he is facing trial for the offence punishable under Section 138 of Negotiable Instruments Act. Learned counsel for the petitioner mainly contended that to invoke the provisions under Section 138 of Negotiable Instruments Act (for short ‘N.I.Act’), the complainant has to comply with the requirement of giving notice in terms of clause (b) of proviso to Section 138 of N.I.Act. He further submitted that in the present case, even though it is stated in the complaint that the notice is served on the petitioner herein, the same cannot be treated as sufficient compliance with the requirement of giving notice of demand. He also submitted that the notices were got issued to the addresses where the petitioner was not working and the construction work was going on. Learned counsel further submitted that the signature on the notice is not the signature of the petitioner. He relied on a decision of the Apex Court in M.D.Thomas vs. P.S.Jaleel and another[1], in support of his contention, and, hence, prayed to quash the present complaint against the petitioner. Clause (b) of the proviso to Section 138 of N.I. Act cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for 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. A reading of paragraph 3 of the complaint would go to show that the complainant got issued two legal notices on 10.03.2011 i.e., one to the residential address and also to the office address of the petitioner. As far as the notice sent to the residential address is concerned, the petitioner received the same, whereas the notice sent to the office address is concerned, the same was returned with an endorsement “Left This Address”. Thus, this Court is not in a position to decide whether the notice is served properly or not and it is a question of disputed fact which can be appraised by the trial Court. Further, in the case of M.D.Thomas relied on by the learned counsel for the petitioner, the Apex Court held that as the notice was served on the wife of the appellant therein and not the appellant therein, there was no escape from the conclusion that the respondent complainant had not complied with the requirements of giving notice in terms of clause (b) of proviso to Section 138 of the Act. There is no dispute or confusion over the said preposition. But, in the instant case, the facts are not similar to the facts of the case relied on by the learned counsel. Hence, this Court is not inclined to interfere with the trial at this stage. Accordingly, the criminal petition is dismissed. Miscellaneous petitions, if any, pending in this criminal petition shall stand closed. ____________________ JUSTICE RAJA ELANGO 08.09.2011 v v [1] (2009) 14 Supreme Court Cases 399