- (1.) This revisional application is directed against the order dated 21st November, 1998 passed by the Ld. Additional Sessions Judge, Alipore in Criminal Motion No. 206 of 1998 where under a revisional application filed by the petitioner challenging the order dated 18th March, 1998 passed by the Ld. Judicial Magistrate, IXth Court, Alipore in complaint case No. C-832/97 under Section 138 of the Negotiable Instruments Act was dismissed. The case of the petitioners, Sri Allis Reja and Sri Goutam Chatterjee, is in short as follows. They are the partner of M/s. Classic Constriction and in course of business transaction they issued two cheques worth Rs. 50,000/- in favour of respondent No.l Sri Pran Ballav Kundu who presented the same to Indian Overseas Bank but the cheques were returned by the Banker with the endorsement. "Insufficient Funds" with a memorandum dated 4th March, 1997 issued by the Punjab National Bank, Dharamtala Branch and returned to the respondent No. l who received it on 7th March 1997. Thereafter the respondent No. 1 issued a demand notice through his Advocate on 11th March. 1997 by registered post with A/D but the same was returned to the said Advocate with postal endorsement, "Not Claimed". No payment having been made against such demand notice, the said respondent filed the above mentioned complaint before the Court of SDJM, Alipore on 11th April, 1997 being case No. C-832/97. The petitioners as the accused in that case entered their appearance before the Court in connection with that case on 20th November, 1997 and then the case was transferred to the Court of IXth Judicial Magistrate, Alipore for trial. On 17th February, 1998 which was the date fixed for appearance of the parties in that case the petitioner-accused filed an application before the court praying for their discharge on the ground that the notice under Section 138(b) had not been served properly and after hearing both sides Ld. Maclistrate rejected that application and being aggrieved thereby they preferred a revisional application there against before the Court of Sessions Judge at Alipore (Criminal Motion No. 206 of 1998) which was also dismissed by the Id. Sessions Judge by his order dated 21st November, 1998 and being aggrieved by that order they have preferred the present revisional application before this Court.
(2.) The contention of the petitioners is that they could not come to know about the alleged bouncing of the cheques in question since they did not receive any notice which under the law is required to be actually served on them in writing by the respondent before he could initiate a proceeding under Section 138 of the N.I. Act. According to the petitioners the purpose of giving such a notice to the drawer of the cheques is to provide him with an opportunity to make payment or arrange for making payment by depositing sufficient amount in his Bank Account within 15 (fifteen) days from the date of receipt of such notice. It is the requirement of law that such a notice must be actually served upon the drawers of the cheque in question, but in this case no such actual service of the said notice was at all effected and consequently the petitioners had no knowledge about such notice. The remark put by the postal peon. "Not Claimed" on the body of the envelope containing the notice does not amount to service of notice. The respondent could have presented the cheques once again to the bank, because a cheque can be presented to the bank any number of times within the period of its validity or within six months whichever is earlier, but he did not select to do that and instead he played a foul game by keeping the petitioners in the darkness in respect of the demand notice. It is the further contention of the petitioners that as per the settled legal position unless there is service of proper demand- notice as contemplated under Section 138(b) of the N.I. Act, no such proceeding can be initiated and the proceeding that has been initiated in the absence of service of such notice is clearly an abuse of the process of law. According to the petitioners the Courts below fell into error by not considering this aspect of the law and the impugned order being illegal and erroneous is liable to be set aside.
(3.) The main question that has been raised in this revisional application is whether the remark of the postal peon on the body of the envelope containing the notice as "Not Claimed" should be treated as good service of the notice or not and, if not, whether the petitioner-accused was entitled to be discharged before being examined under Section 251 Cr.P.C. by learned Magistrate on the ground that the payee of the cheque, i.e. the complainant had failed to make a demand for payment of the amount in question within the prescribed period of fifteen days of the receipt of the information by him from the bank regarding return of the cheque as unpaid,;