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2004 DIGILAW 560 (AP)

Kore Gopal v. Jetti Punnaiah

2004-06-13

B.SESHASAYANA REDDY

body2004
B. SESHASAYANA REDDY, J. ( 1 ) THIS Criminal Petition is filed by the sole accused-Kore Gopal in c. C. No. 46 of 2001 on the file of Judicial first Class Magistrate, at Luxettipet to quash the proceedings therein. ( 2 ) R1 herein is the complainant in c. C. No. 46 of 2001. The complaint averments in brief are as follows: the accused issued a cheque bearing no. 850611 dated 23-11-2000 for rs. 5,00,000/- in favour of the complainant towards discharge of his legally enforceable liability. The said cheque on presentation came to be dishonoured on 8-12-2000. Consequently the complainant issued a statutory notice dated 11-12-2000 demanding the accused to pay the cheque amount. The said notice sent by the complainant through m/s A. N. L. Parcel Service was returned unserved as the addressee/accused refused to take the same. He also got the statutory notice published in Eenadu Daily, Adilabad edition on 16. 12. 2000 demanding the accused to pay the cheque amount. Since the accused failed to pay the amount covered under the cheque in question, a complaint came to be presented by the complainant before the judicial Magistrate of First Class, Luxettipet. The learned Magistrate took the complaint on file as C. C. 46 of 2001 and issued process. Hence, this petition by the accused to quash the proceedings in C. C. No. 46 of 2001. ( 3 ) LEARNED Counsel for the petitioner/ accused submits that the notice sent by Rl through M/s ANL Parcel Service is not in accordance with Section 138 (b) of Negotiable instruments Act and therefore the very prosecution of the accused for the offence under Section 138 of N. I. Act is vitiated. He further submits that the notice required under Section 138 (b) of N. I. Act shall be sent by a registered post and the said provision does not contemplate serving of notice through M/s ANL Parcel Service. ( 4 ) IT is well settled principle of law that the powers under Section 482 Cr. P. C are to be exercised with due care, caution and circumspection. R1-complainant has specifically averred in Para (4) of the complaint which reads as follows: "4. ( 4 ) IT is well settled principle of law that the powers under Section 482 Cr. P. C are to be exercised with due care, caution and circumspection. R1-complainant has specifically averred in Para (4) of the complaint which reads as follows: "4. The complainant got the statutory notice dated 11-12-2000 issued to the accused through his Advocate demanding him to pay the cheque amount within (15) days after receipt of the notice by ANL Parcel service as the postal staff was on strike. The accused refused to take the notice under parcel service. The complainant has got the statutory notice also published in Eenadu telugu Daily, Adilabad District Education on 16-12-2000 demanding the accused to pay the cheque amount within (15) days from the date of publication. Inspite of the notices which are of sufficient service, the accused did not choose either to pay the cheque amount or to give reply within (15) days from the date of the last deemed service i. e. , 16-12-2000. " it is explicit from the above referred portion of the complaint, the complainant specifically pleaded that he sent notice through M/s. ANL Parcel Service as the postal staff were on strike during the relevant period and that the accused refused to take the notice sent through M/s ANL parcel Service. When once the notice has been sent to the correct address of the accused and if the accused refuses to take the same, it is to be construed that there is a proper service of notice as contemplated under Section 138 (b) of N. I. Act. THE requirement for sending a notice after the cheque is returned by the Bank unpaid is set out in clauses (b) and (c) of the proviso to section 138 of the Act. THE requirement for sending a notice after the cheque is returned by the Bank unpaid is set out in clauses (b) and (c) of the proviso to section 138 of the Act. They read thus :"provided that nothing contained in this section shall apply unless : (A) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (B) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (C) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. "the duty cast on the payee on receipt of information regarding the return of the cheque unpaid is mentioned in clause (b) of section 138. Within 15 days he has to make a demand for payment. The mode of making such demand is also prescribed in the clause, that it should be "by giving notice in writing to the drawer of the cheque". Nowhere it is said that such notice must be sent by registered post or that it should be dispatched through a messenger. ( 5 ) CHAPTER XVII of the Act, containing Sections 138 to 142, was inserted in the Act as per Banking Public Financial institution and Negotiable Instruments Laws (Amendment) Act, 1968. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipment already in vogue and also in store for future. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipment already in vogue and also in store for future. If the Court were to interpret the words "giving notice in writing" in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process would fail to cope up with the change of time. The Supreme Court in SIL Import, USA v. Exim Aides Silk exporters, Bangalore, 1999 (2) ALD (Crl.) 767 = AIR 1999 SC 1609 , while dealing with the manner of service of notice in writing on the drawer of the cheque held as follows:"facsimile (of Fax) is a way of sending hand-written or printed or typed materials as well as pictures by wire or radio. In the West such mode of transmission came to wide use even way back in the late 1930s. By 1954 international News Service began to use facsimile quite extensively. Technological advancement like Facsimile, Internet, E-mail etc. , were on swift progress even before the bill for the Amendment Act was discussed by the Parliament. So when Parliament contemplated notice in writing to be given we cannot overlook the fact that Parliament was aware of modem devices and equipment already in vogue. "what is contemplated under Section 138 (b) of N. I. Act is a notice in writing. R1- complainant has specifically pleaded in the complaint that he sent notice through m/s ANL Parcel Service as the postal staff were on strike during the relevant period and that the petitioner/accused refused to take notice under parcel service. Whether the petitioner/accused refused to receive the notice sent by R1-complainant through m/s ANL Parcel Service or not, is required to be gone into at the trial of the case. In an application under Section 482 Cr. P. C. cannot be said that there is no proper service of statutory notice on the petitioner/accused. ( 6 ) IN the result, this criminal petition fails and the same is dismissed.