Mandatory notice under Section 138 bars Section 319 proceedings against a person not served with notice.

In a prosecution under Section 138 of the Negotiable Instruments Act, notice under Section 138(b) is a mandatory precondition for initiating proceedings against the person sought to be prosecuted. Where no such notice had been issued to the person against whom the cheque was drawn, the essential basis for fastening criminal liability was absent. On that footing, the court held that resort to Section 319 of the Code of Criminal Procedure, 1973 was not available to proceed against that person, and the refusal to invoke Section 319 was upheld.

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Issues: Whether a person could be proceeded against under Section 319 of the Code of Criminal Procedure, 1973 in a complaint under Section 138 of the Negotiable Instruments Act, 1881 when no notice under Section 138(b) had been issued to that person.

Analysis: The cheque was found to have been drawn on the account of Jitendra Kumar Verma, but the complaint and notice had been issued against another person. In proceedings under Section 138 of the Negotiable Instruments Act, issuance of notice under Section 138(b) is the first and foremost requirement for initiating the complaint and for giving rise to a cause of action against the person sought to be prosecuted. Since no notice had been issued to Jitendra Kumar Verma, the essential condition for proceeding against him was absent. On that basis, the refusal to invoke Section 319 of the Code of Criminal Procedure, 1973 was held to be justified.

Conclusion: The application under Section 319 of the Code of Criminal Procedure, 1973 was not maintainable on the facts, and the impugned order dismissing it was upheld.

Ratio Decidendi: In a prosecution under Section 138 of the Negotiable Instruments Act, 1881, notice under Section 138(b) is a mandatory precondition, and a person against whom no such notice has been issued cannot be proceeded against by resort to Section 319 of the Code of Criminal Procedure, 1973.

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