JUDGMENT B.B. Mangalmurti, J. :- Instant application has been filed seeking leave to prefer an appeal for setting aside the judgment dated 09.02.2009 passed in Cri. Appeal No. 22 of 1996 by Sessions Judge, Seraikela Kharsawan whereby the Court has allowed the appeal and thereby acquitted the opposite party Nos. 2 & 3 and thereafter set aside the judgment and sentence dated 11.05.2006 in C/1 Case No. 01 of 2003, Trial No. 549 of 2006 passed by Sri Anuj Kumar, Judicial Magistrate, 1st Class, Saraikela. 2. The short fact of the case is that the petitioner is consignee agent of one Idcol Ltd. and entered into business transaction with the opposite parties who run a construction business. The petitioner had supplied cement worth Rs. 4,41,600/- to opposite party during usual commercial transaction. The opposite party did not pay the bill, however a cheque for an amount of Rs. 4,00,000/- was drawn on 22.11.2002. On being presented, the cheque was returned unpaid with endorsement of '' stop payment'' from the bank on 23.11.2002. Thereafter, the petitioner raised a demand by way of notice but the opposite party even after receipt of the same did not make the payment which led to filing of the case. 3. The prosecution altogether examined four witnesses to prove his case. The court below after considering the evidences adduced on behalf of the prosecution held the opposite party Nos. 2 & 3 guilty under section 138 of Negotiable Instruments Act and sentenced to undergo rigorous imprisonment for nine months and fine of Rs. 5,000/- and in default further to undergo simple imprisonment for one month each. 4. The opposite party preferred Cri. Appeal No. 22 of 1996 for setting aside the judgment before the Sessions Judge, Seraikela. The Court of Session Judge vide order dated 09.02.2009 was pleased to allow the appeal and acquitted the opposite party and thereafter set aside the judgment and sentence dated 11.05.2006 passed by the Court of Judicial Magistrate, 1st Class. 5. Learned counsel appearing on behalf of the petitioner submitted that the judgment is bad-in-law as well as in fact. The court below has failed to appreciate that the prosecution have able to prove the case as there were commercial relationship between the parties. It was drawer of the cheque to prove its case which has not been done in this case. The court below has failed to appreciate that the prosecution have able to prove the case as there were commercial relationship between the parties. It was drawer of the cheque to prove its case which has not been done in this case. The court below also failed to appreciate that the cement was supplied to the opposite party for which a cheque was issued but it stood dishonoured on its presentation before the bank. The Court has not considered that a legal notice raising demand of the amount was sent. The court below has erred by not accepting the fact that the cement was delivered to the opposite party as several challans and bills have been exhibited for its confirmation of business transaction between them. 6. Learned counsel for the State submitted in support of the impugned judgment that the cheque return memo was filed but the same was not exhibited in this case. The cheque return memo does not contain seal of the concerned bank in whose favour the cheque was issued. He also submitted that in a notice particulars of the claim amount, which is different from the cheque amount and interest are not separately specified then it cannot be held a valid notice. The court below considering the mandates of the superior Court has rightly held that the notice sent to the accused-appellant is not proper as the demand was made on the total bill amount of Rs. 4,41,600/- and not the amount of Rs. 4,00,000/- only as mentioned in the dishonoured cheque. Since there is no demand of dishonoured cheque, the conviction is not in accordance with law. 7. We have gone through the pleadings of the parties and perused both the judgments. It appears that there is difference in the amount mentioned in the cheque which became dishonoured as well as the amount called upon for payment through a legal notice (Exhibit 4). It further appears that the court below has found that in the notice if an omnibus demand is made to satisfy the demand under dishonoured cheque, notice will fail to meet the legal requirement and may be recorded as bad. The court below considering the law laid down by the Hon''ble Supreme Court has held that:- '' Though it is a fact that the amount of Rs. The court below considering the law laid down by the Hon''ble Supreme Court has held that:- '' Though it is a fact that the amount of Rs. 4,00,000/- has been mentioned but the demand has not been made for the said amount rather a different amount and in the circumstances it is not separable rather it is the sole amount. Since there is no demand for the amount in ext. 5 i.e. the dishonoured cheque, the whole prosecution of the accused persons under law is not in accordance with law.'' 8. The Appellate Court has also made comment that there were altogether three accused persons namely M/s. Harihar International, Satyanarayan Agarwal and Kailash Kumar Gupta but the cause title does not refer M/s. Harihar International as an accused nor the said M/s. Harihar International is punished for the offence or is held guilty. The judgment shows only the present appellant is guilty but has not even acquitted M/s. Harihar International. The Appellate Court found that the judgment of the Court of Judicial Magistrate is based on wrong conclusion and accordingly it was set aside. 9. Hon''ble Supreme Court while dealing with a similar issue in the case of Suman Sethi v. Ajay K. Churiwal and another, reported in (2000) 2 SCC 380 : ( AIR 2000 SC 828 ) in paragraph 8 has held as under :- ''8. It is a well-settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the ''said amount'' i.e. the cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to the ''said amount'' there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving the break-up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, the notice might well fail to meet the legal requirement and may be regarded as bad.'' 10. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under the dishonoured cheque, the notice might well fail to meet the legal requirement and may be regarded as bad.'' 10. In the case of Rahul Builders v. Arihant Fertilizers & Chemicals, reported in (2008) 2 SCC 321 : (2007 AIR SCW 7008) Hon''ble Apex Court has referred paragraph 11 of K.R. Indira v. Dr. G. Adinarayana [ (2003) 8 SCC 300 ] : ( AIR 2003 SC 4689 ) which is quoted hereunder :- '' 11. ... However, according to the respondent, the notice in question is not separable in that way and that there was no specific demand made for payment of the amount covered by the cheque. We have perused the contents of the notice. Significantly, not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand for the loan amount and not the demand for payment of the cheque amount, nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount, the non-compliance with such a demand only being the incriminating circumstance which exposes the drawer for being proceeded against under Section 138 of the Act.'' 11. In the instant case also, no demand was made for payment of the cheque amount and since there is difference in the amount mentioned in the dishonoured cheque and the amount mentioned in the legal notice, we find no illegality in the impugned judgment. Therefore, prayer for leave to prefer an appeal is refused. 12. In the result, instant criminal miscellaneous petition is dismissed.