IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE NINETEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.717 OF 2009 Between: Smt. S. Mani ..... APPELLANT/COMPLAINANT AND 1 The State of Andhra Pradesh, rep. by Public Prosecutor, High Court of A.P., Hyderabad. 2. Mohd. Abdul Qadeer ..... RESPONDENTS/ACCUSED The Court made the following : JUDGMENT: The criminal appeal under Section 417 Cr.P.C. is directed against the judgment, dated 31.03.2009, in C.C.No.116 of 2006, on the file of the learned VII Additional Chief Metropolitan Magistrate, Hyderabad, whereunder and whereby, the second respondent/accused was found not guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and accordingly acquitted under Section 255(1) Cr.P.C. 2. None appeared for the appellant, inspite of giving sufficient opportunity. 3. In the grounds of appeal, it is stated that the cheque was issued towards the discharge of legally enforceable debt and that at the time of filing of the complaint, all the original documents were examined while receiving xerox copies of the list of documents and that the subsequent event viz., payment of some amount by the accused would clearly go to show that he is open to pay the amount. Hence, it is prayed to set aside the impugned judgment and convict the second respondent/accused. 4. To substantiate the case, P.W.1 is examined and Exs.P1 and P2 were marked, on behalf of the complainant. No oral or documentary evidence was adduced on behalf of accused. 5. Considering the evidence on record, the trial Court came to the conclusion that the statutory demand notice has not been served on the accused and accordingly acquitted the accused. The trial Court also gave a finding that the cheque was given and it was legally enforceable debt. Challenging the same, the present appeal is filed. 6. Under Section 138 of the Negotiable Instruments Act, 1881, “Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.” Proviso (b) to Section 138 reads that a payee and holder in due course of the cheque, as the case may be, makes a demand in the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. 7. Therefore, one of the condition precedents is that when the cheque is returned unpaid, a notice has to be given to the accused calling upon him to pay the amount. The purpose of giving of this statutory legal notice is to provide an opportunity to the accused to pay that amount. In this case, though Ex.P2 which is the office copy of the legal notice, dated 21.11.2005, was marked, there is no evidence to show that the same was served on the accused. The postal receipt under which Ex.P2 was sent and also the acknowledgement for receipt of copy of the notice on the accused have not been marked. Therefore, there is no evidence adduced by the complainant to show that the statutory requirement under Proviso (b) to Section 138 of the Negotiable Instruments Act, 1881, has been complied with. Unless it is complied with, the accused cannot be convicted. That is the reason why the trial Court rightly acquitted the accused and the order of acquittal does not call for any interference as it is based upon legal point. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 8. Accordingly, the Criminal Appeal is dismissed. _______________ (K.C. BHANU, J) Date: 19th August, 2009 KL