JUDGMENT AND ORDER (ORAL) This appeal is directed against the judgment dated 06.10.2007, passed by the learned Sessions Judge, Guwahati in Crl. A. No.41/2007 whereby the learned Sessions Judge reversed the judgment and sentence dated 11.06.2007 passed by the learned Special Judicial Magistrate, Kamrup, Guwahati in Case No.6182-c/2005 convicting the appellant who was the accused of the case u/s 138 of the N.I. Act and sentencing him to R.I. for 6 months and to pay find of Rs. 2,00,000/- in default to imprisonment for 3 months. 2. The appellant herein Manoj Kumar Narzary as complainant filed a complaint before the learned CJM, Kamrup, Guwahati which came up for trial before the learned Judicial Magistrate, First Class, Assam. As per the complaint, the complainant entered into an agreement with the accused regarding some financial transactions in connection with some construction works under the Assam State Housing Board. It was stipulated in the agreement that the appellant (complainant) was to receive Rs.1,17,000/- from the respondent (accused) and accordingly a cheque was issued by the accused which was presented in the Diphu Branch of SBI but the cheque was dis-honoured due to “stop payment” instructions issued by the accused. The complainant then issued legal notice on 05.08.2005 to the respondent accused informing about the dis-honour of the cheque but no specific demand was made for payment. Failing to receive any response, the complaint was filed against the accused. In the Trial the complainant examined 3 witnesses and the accused also examined 2 witnesses in support of his defence that no amount was due from him to the complainant and the cheque was obtained from him by force. In reply to the notice purportedly issued u/s 138(b) of the N.I. Act the accused had stated that no amount was due from him to the complainant. 3. The learned Magistrate found the accused guilty u/s 138(b) of the N.I. Act and convicted and sentenced him as stated above. In reply to the notice purportedly issued u/s 138(b) of the N.I. Act the accused had stated that no amount was due from him to the complainant. 3. The learned Magistrate found the accused guilty u/s 138(b) of the N.I. Act and convicted and sentenced him as stated above. Being aggrieved accused preferred the appeal before the learned Sessions Judge and the learned Sessions Judge reversed the judgment of the learned Trial court and recorded acquittal of the accused which compelled the complainant to prefer this appeal before this court contending therein that the learned Sessions Judge totally misinterpreted the provisions of Section 138(b) of the N.I. Act and the said judgment was passed under misconception of law by holding that the notice issued by him u/s 138(b) of the N.I. Act was not a demand notice within the purview of the said section. 4. I have heard Mr. P. K. Brahma, learned counsel appearing for the appellant and Mr. K. Bhattacharjee, learned counsel assisted by Mr. M. Hoque appearing for the respondent. 5. Mr. Bhattacharjee inviting my attention to the purported notice issued u/s 138(b), of the N.I. Act contends to project that the said notice cannot be a termed as a ‘demand notice’ u/s 138(b) of the N.I. Act. In this context Mr. Bhattacharjee pointed out that the respondent in his evidence in cross examination admittedly did not demand through the said notice (Exbt.3) for payment of the money of the cheque and as such, same was not a demand notice in view of the statutory requirement of section 138(b) of the N.I. Act. Relying on the judgment of the Apex Court in K.R. Indira vs. G. Adinaryana(Dr.) reported in 2003 STPL 14613 SC he submits that there was no specific demand made for payment of the amount covered by the cheque and since demand for the amount covered by the dis-honoured cheque is absent in the notice issued, the same is imperfect. The notice is also imperfect in the sense that no time period was given in the said notice for payment of the amount and instead of demanding payment, the accused was asked to contact the complainant which appears to be for a negotiated settlement. The notice is also imperfect in the sense that no time period was given in the said notice for payment of the amount and instead of demanding payment, the accused was asked to contact the complainant which appears to be for a negotiated settlement. For ready reference the notice is reproduced below:- “Legal Notice To, Haradhan Das, Vill & P.O.- Bakalia, Dist – Karbi Anglond, Assam Take notice that on instruction of my client Shri Manaj Kr. Narzary, Residence of Kahilipara, Guwahati-19, I am directed to say that you entered into a verbal agreement with regard to financial transactions in connection with the construction work under the office of the Commissioner ASHB in the work order No. ASHB/Tech./590/02/74 dated 3.07.2003. as per verbal agreement reached in the office of the Commissioner of ASHB you were entitled to received Rs.60,222/- out of 1,77,222/- and rest amount was to be received by Manaj Kr. Narzary to which you agreed and accordingly you issued a cheque of Rs.1,17,000/- bearing no.SB 00/118-831643 dated 21.07.2005. But while my client approached the concerned Bank for withdrawal of the said amount of money that is Rs. 1,17,000/- is it found that you have asked the concerned Bank authority to make payment stop by the drawer besides with drawing a total amount of Rs.1,30,000/-- in two installments, being Rs.50,000/- and 80,000/- in a day itself to which you were not entitled to received so much of money in the said construction work by virtue of the terms and conditions of the verbal agreement. So it is a gross violation of the terms and conditions of the verbal agreement and a kind of ‘Cheating’ which is severely punishable under the provisions of law. Therefore you are asked to contact my client Shri Manaj Kr. Narzary within a short period of time. Failing which a case will be filed against you within a short time besides moving for a police action. This may be treated very urgent.” 6. On scrutiny of the aforesaid notice what is evident is that there was no specific demand made in the notice and it was also stated in the notice that the accused had withdrawn Rs.50,000/- and Rs.80,000/- in a day from the account and it is not discernible from which account the amount was withdrawn. On scrutiny of the aforesaid notice what is evident is that there was no specific demand made in the notice and it was also stated in the notice that the accused had withdrawn Rs.50,000/- and Rs.80,000/- in a day from the account and it is not discernible from which account the amount was withdrawn. Moreover, the accused was specifically directed to meet the complainant within a short period of time failing which a case would be filed. This was obviously for the purpose of a negotiated settlement. Learned Sessions Judge on perusal of the notice came to the finding that it was not a demand notice within the meaning of section 138(b) of the N. I. Act and recorded acquittal for non compliance of the statutory provisions. 7. Having regard to the submissions advanced by the learned counsels and having considered the evidence on record and more particularly, the contents of the notice, purportedly issued u/s 138(b) of the N.I. Act, I am constrained to hold that the said notice cannot be termed as a ‘demand notice’ within the meaning of section 138(b) of the N. I. Act without which the complaint itself is not found to be maintainable. The learned Sessions Judge, in my considered view, rightly reversed the finding of the learned trial court. 8. In view of above, I do not find any merit in the present appeal and as such the same stands dismissed. 9. Send down the LCR.