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1999 DIGILAW 53 (KER)

John v. George Jacob

1999-01-28

K.A.MOHAMMED SHAFI

body1999
Judgment :- K.A. Mohamed Shafi, J. This revision petition is filed by the accused in C.C. 91/90 on the file of the J.F.C.M's Court, Pathanamthitta. 2. On the basis of the complaint filed by the 2nd respondent, the revision petitioner was prosecuted for the offence punishable under S.138 of the Negotiable Instruments 'Act. It is alleged that the revision petitioner issued two cheques for Rs. 25,000/- and Rs. 19,389/-respectively drawn on United Commercial Bank for the amount of Rs. 44,389/- due from him to the 2nd respondent and when the cheque was presented for encashment it was bounced. The revision petitioner did not pay the amount in spite of a registered notice intimating about the dishonour of the cheque and calling upon him to pay the amount. Hence he is guilty of the offence punishable under S.138 of the Negotiable Instruments Act. 3. The trial court after trial found the revision petitioner guilty of the offence punishable under S.138 of the Negotiable Instruments Act and convicted and sentenced him to undergo R.I. for one year and to pay a fine of Rs. 5000/- in default of payment to undergo R.I. for three months by judgment dated 31.3.1992. The revision petitioner challenged the finding of guilt, conviction and sentence entered by the trial court before the Sessions Court, Pathanamthitta in Crl. Appeal No. 39/92 without success. Hence he has preferred this revision petition before this Court. 4. Though several contentions are raised in the memorandum of Crl.R.P., when the above revision petition came up for hearing the only contention urged before me is that the entire prosecution is bad in law for want of a proper notice under proviso (b) to S.138 of the Negotiable Instruments Act. Proviso (b) to S.138 of the Negotiable Instruments Act stipulates that the payee or the holder in due course of the cheque should make a demand for payment of the amount due under the cheque by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the bank regarding the return of the cheque unpaid. 5. 5. The revision petitioner vehemently contended that in this case the 2nd respondent received information about the dishonour of the cheque on 20.12.1989 and he has sent the notice as stipulated in proviso (b) to S.138 of the Negotiable Instruments Act only on 9.1.1990, which is beyond the time of 15 days stipulated under that proviso which vitiates the entire proceedings in this case. 6. The 2nd respondent has contended that he received the intimation regarding the dishonour of the cheque from the bank only on 6.1.1990 and therefore, the notice sent by him intimating about the dishonour of the cheque and calling upon the revision petitioner to pay the amount is perfectly in time and valid. 7. The counsel for the revision petitioner vehemently argued that proviso (b) to S.138 of the Negotiable Instruments Act stipulates that the notice in writing to the drawer of the cheque should be sent by the payee or the holder in due course within 15 days of the receipt of information about the dishonour of the cheque and that proviso does not provide that the payee or holder in due course of the cheque should get the information in writing. According to him, that proviso contemplates only information regarding the dishonour of the cheque received by the payee or holder in due course and not a written information, whereas it stipulated a notice in writing to the drawer of the cheque intimated about the dishonour of the cheque within 15 days of the information received by the payee or holder in due course of the cheque. Therefore, according to him, the Legislature significantly used the words 'receipt of information' while stating about the information to be received by the payee or holder in due course of the cheque regarding the dishonour of the cheque, whereas the expression 'notice in writing' is used regarding the notice to be given by the payee or holder in due course to the drawer of the cheque regarding the dishonour of the cheque. 8. In this case PW1 has deposed that he know about the dishonour of the cheque when he went to his bank on 20.12.1989, though according to him, he received Ext. P1 cheque return memo from the bank on 6.1.1990. 8. In this case PW1 has deposed that he know about the dishonour of the cheque when he went to his bank on 20.12.1989, though according to him, he received Ext. P1 cheque return memo from the bank on 6.1.1990. PW2, who is the manager of the bank of the 2nd respondent has deposed that the cheque return memo was prepared at Chengannur on 20.12.1989 and information regarding dishonour of the cheque can be received from the bank if anybody had gone to the bank on 20.12.1989. On the basis of the above evidence of PWs 1 and 2 the revision petitioner vehemently contended that in this case there is clear admission of the 2nd respondent as PW1 that he received information regarding dishonour of the cheque on 20.12.1989 and therefore the notice Ext. P7 sent by the 2nd respondent on 8.1.1990 is patently barred by time under the proviso (b) to S.138 of the Negotiable Instruments Act and as such the very prosecution is illegal and unsustainable and therefore, he is entitled to acquittal in this case. 9. The counsel for the 2nd respondent vehemently submitted that the receipt of information mentioned in proviso (b) to S.138 of the Negotiable Instruments Act regarding dishonour of the cheque contemplates written information and not mere knowledge about the dishonour of the cheque by the payee or the holder in due course. According to him, though it is not specifically stated in proviso (b) to S.138 of the Negotiable Instruments Act, that receipt of information regarding dishonour of the cheque from the bank should be in writing, the expression receipt of information contemplates information in writing from the bank. 10. According to him, though it is not specifically stated in proviso (b) to S.138 of the Negotiable Instruments Act, that receipt of information regarding dishonour of the cheque from the bank should be in writing, the expression receipt of information contemplates information in writing from the bank. 10. In Concise Oxford Dictionary the meaning of the word 'receipt' is given as follows: "the act or an instance of receiving or being received into one's possession; a written acknowledgement of this, especially of the payment of money...." In the Law Lexicon the meaning of 'receipt' is given as follows: "'RECEIPT' includes any note, memorandum or writing - (a) whereby any money or any bill of exchange, cheque or promissory note is acknowledged to have been received, or (b) whereby any other movable property is acknowledged to have been received in satisfaction of a debt, or (c) whereby any debt or demand or any part of a debt or demand, is acknowledged to have been satisfied or discharged, or(d) which signifies or imports any such acknowledgement, and whether the same is or is not signed with the name of any person. 'RECEIPT' is an acknowledgment of payment or delivery; an acknowledgment of the fact of payment or other settlement between debtor and creditor; a written acknowledgment of something received as of right by the party writing: a written admission made by the party signing it, of the fact which it recites. 'RECEIPT' is an acknowledgment in writing having received a sum of money, or other valuable consideration; it is a voucher either of an obligation or debt discharged, or of one incurred. A receipt is a written admission of the fact of payment and receipt of money." In the Black's Law Dictionary the meaning of receipt is as follows: 'Receipt' - written acknowledgment of the receipt of money, or a thing of value, without containing any affirmative obligation upon either party to it; a mere admission of a fact, in writing. And, being a mere acknowledgment of payment, is subject to parol extension or contradiction. Receipt is a writing which acknowledges taking or receiving either money of goods which have been paid or have been delivered Act of receiving; also, the fact of receiving or being received; that which is received. That which comes in, in distinction from what is expended, paid out, sent away, and the like". 11. Receipt is a writing which acknowledges taking or receiving either money of goods which have been paid or have been delivered Act of receiving; also, the fact of receiving or being received; that which is received. That which comes in, in distinction from what is expended, paid out, sent away, and the like". 11. From the context at which the expression'receipt of information' used in proviso (b) to S.138 of the Negotiable Instruments Act, it is clear that what the Legislature intended is a receipt of information in writing and not a mere oral information, though the words 'in writing' do not find in that proviso at that context. It has to be noted that if notice as stipulated in proviso (b) to S.138 of the Negotiable Instruments Act is issued on wrong information regarding the dishonour of the cheque, it will lead to several disastrous consequences. Payee or holder in due course who issued the statutory notice on wrong information will be liable for civil as well as criminal prosecution. Such a contingency should never have envisaged by the Legislature while enacting proviso (b) to S.138 of the Negotiable Instruments Act. Therefore, the contention of the revision petitioner that the framers of the proviso (b) to S.13 8 of the Negotiable Instruments Act deliberately used the words 'notice in writing' when it was intended to the drawer of the cheque giving information about the dishonour of the cheque and omitted the words 'in writing' when it was intended for the information regarding the dishonour of the cheque to the payee or holder in due course, as the case may be, and therefore, oral information regarding the dishonour of the cheque is what is contemplated under proviso (b) to S.138 of the Negotiable Instruments Act, cannot be accepted, especially while considering the dictionary meaning of the word 'receipt' used in that context. 12. 12. In view of my construction of the words 'receipt of information' as receipt of information in writing regarding the dishonour of the cheque, the contention of the revision petitioner that when two interpretations are possible while interpreting a penal provision, the interpretation which is favourable or less onerous to the accused should be preferred, is not applicable to the facts in this case since according to me, only one interpretation is possible and there is no scope for two interpretations of the expression 'receipt of information' employed in proviso (b) to S.138 of the Negotiable Instruments Act in this case. 13. As already noted the contention of the 2nd respondent is that he received the intimation regarding the dishonour of the cheque issued by the revision petitioner from his bank only on 6.1.1990. PW2, the Manager of the 2nd respondent's bank with reference to the local delivery register which was produced in court and marked as Ext. P8, has deposed that the 2nd respondent has acknowledged the receipt of Ext. P2 series on 6.1.1990. Therefore, it is conclusively established that the intimation regarding the dishonour of the cheque is given to the 2nd respondent by the bank only on 6.1.1990. Hence in view of my finding that the period of 15 days from the date of receipt of information regarding the dishonour of the cheque will commence only from the date of receipt of written information from the bank regarding the dishonour of the cheque, Ext. P7 notice dated. 8.1.1990 issued by the 2nd respondent intimating the revision petitioner regarding the dishonour of the cheque is perfectly valid under proviso (b) to S.138 of the Negotiable Instruments Act. Therefore, the contention of the revision petitioner that the very prosecution is bad under law for want of statutory notice as contemplated under proviso (b) to S.138 of the Negotiable Instruments Act, is not sustainable. In view of my above finding and no other contention is raised by the revision petitioner before me, the above revision petition is devoid of my merits. Hence the judgment passed by the courts below are confirmed and this revision petition is dismissed.