IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.711 OF 2009 (Arising out of S.L.P. (Crl.) No.7828 of 2007)

M.D. Thomas      ...Appellant(s)

Versus

P.S. Jaleel and Anr.      ...Respondent(s)

O  R  D  E  R

Leave granted.

Heard learned counsel for the parties.   The Trial Court, upon conclusion of the trial, acquitted the appellant of the  

charge under Section 138 of  the Negotiable Instruments Act,  1881, [for short ‘the  Act’].  On appeal by the complainant, the High Court set aside the order of acquittal,  

convicted the appellant and sentenced him to undergo imprisonment till the rising of  the Court and directed to pay the sum of rupees one lakh twenty thousand to the  

complainant; in default, to undergo further simple imprisonment for a period of three  months.  Against the said order, present appeal has been filed by special leave.

Learned counsel  for  the appellant  argued that  his  client’s  conviction is  liable to be set aside because before filing complaint, the respondent did not serve  

upon him notice  as  per  the  requirement of Clause (b) of proviso to ....2/-

- 2 -

Section 138 of the Act.  He submitted that service of notice on the appellant’s wife  cannot  be  treated  as  compliance  of  the  mandate  of  law.   Learned  counsel  for  

respondent No.1 did not dispute that the notice issued by his client was, in fact, served  upon  the  appellant’s  wife  but  argued  that  this  should  be  treated  as  sufficient  

compliance of the requirement of giving notice of demand.   Section 138 deals with the dishonour of cheque for insufficiency, etc.,  of  

funds in the accounts of the person who draws the cheque and lays down that such  person shall be deemed to have committed an offence and shall, without prejudice to  

any other provisions of this Act, be punished with imprisonment for a term which  may be extended to two years, or with fine which may extend to twice the amount of  

the cheque, or with both.  Proviso to Section 138 specifies the conditions which are  required to be satisfied before a person can be convicted for an offence enumerated in  

the substantive part of the section.  Clause (b) of the proviso to Section 138 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 thirty days of the receipt of information by him from the  

bank regarding the return of the cheque as unpaid.  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  complainant-respondent  had   not  complied

....3/-

- 3 -

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.   In the result, the appeal is allowed.  The impugned order is set aside and  

the order of acquittal passed by the Trial Court is restored.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, April 13, 2009.