Statutory notice under cheque dishonour law is essential; Section 319 cannot cure a non-maintainable complaint.

Liability under Section 138 of the Negotiable Instruments Act arises only when the statutory ingredients are satisfied, including issuance and service of the demand notice on the drawer and failure to pay within the prescribed time. Where no such notice was issued or served, no cause of action arises and the complaint is not maintainable against that person. The power under Section 319 of the Code of Criminal Procedure cannot be used to cure that defect or to make maintainable a complaint that was otherwise not maintainable. The Gujarat HC noted that authorities dealing with companies and Section 141 were inapplicable on the facts of a proprietorship concern.

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Issues: Whether a person against whom no statutory notice under Section 138 of the Negotiable Instruments Act had been issued or served could nonetheless be arraigned as an accused in exercise of powers under Section 319 of the Code of Criminal Procedure in a complaint otherwise not maintainable against him.

Analysis: Liability under Section 138 arises only when all the statutory ingredients are satisfied, including issuance and service of the demand notice on the drawer of the cheque and failure to pay within the prescribed time. In the absence of such notice to the petitioner, no cause of action arose against him and the complaint could not have been maintained against him. The power under Section 319 of the Code of Criminal Procedure cannot be used to cure that fundamental defect or to make maintainable a complaint which was not maintainable against the petitioner in the first place. The decisions relied upon for the complainant were held inapplicable on the facts, particularly because the present case concerned a proprietorship concern and not a company with statutory deeming consequences under Section 141 of the Negotiable Instruments Act.

Conclusion: The petitioner could not be added as an accused under Section 319 of the Code of Criminal Procedure in the absence of statutory notice under Section 138 of the Negotiable Instruments Act, and the revisional order directing his arraignment was unsustainable.

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