Supreme Court of India
(From Karnataka High Court)
K.T. Thomas & M.B. Shah, JJ.
M/s. SIL Import, USA —Appellant
versus
M/s. Exim Aides Silk Exporters, Bangalore —Respondent
Criminal Appeal No. 488 of 1999
(Arising out of SLP (Crl.) No. 717 of 1999)
Decided on 3-5-1999
Counsel for the Parties :
For the Appellant : Dhruv Mehta, S.K. Mehta, F. Anam, Ms. Shobha, Advocates.
For the Respondent : Krishnamurthi Swami, G.R. Mohan, Advocates.

Important Point
If the notice envisaged in clause (b) of the proviso to Section 138 was transmitted by Fax it would be compliance with the legal require­ment and time limit for filing complaint would start running on the date when the notice sent by Fax reaches the drawer of the cheque.

Headnote:(i) Negotiable Instruments Act, 1881—Sections 138 and 142—Dis­honour of cheque—Time limit for prosecution—Demand notice was sent by Fax on 11.6.1996—Regis­tered notice was also sent on same day—Registered notice received by drawer on 25.6.1996—Complaint was filed on 8.8.1996—Whether complaint within time limit?—No—On the date when notice sent by Fax reached drawer period of 15 days for making payment started running on the expiry of which offence stood completed—If notice envisaged in clause (b) of proviso to Section 138 was transmit­ted by Fax it would be compliance with legal requirements—Complaint, in instant case, filed beyond 45 days of Fax notice—Rightly dismissed by Magistrate.

       Held : Admits of no doubt that the magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date on which the cause of action arose. Completion of the offence is the immediate forerunner of rising of cause of action. In other words cause of action would arise soon after completion of the offence, and the period of limitation for filing the complaint would simultaneously start running. (Para 7)

       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, 1988. 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 vague 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. Facsimile (or 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 later 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 modern devices and equipment already in vogue. So if the notice envisaged in clause (b) of the proviso to Section 138 was transmitted by fax it would be compliance with the legal require­ment. (Paras 14, 15 & 17)

       The High Court’s view is that the sender of the notice must know the date when it was received by the sendee, for otherwise he would not be in a position to count the period in order to ascertain the date when cause of action has arisen. The fallacy of the above reason­ing is that it erases the starting date of the period of 15 days envisaged in clause (c). As per the said clause the starting date is the date of “the receipt of the said notice”. Once it starts, the offence is completed on the failure to pay the amount within 15 days therefrom. Cause of action would arise if the offence is committed. If a different interpretation is given the absolute interdict incorporated in Section 142 of the Act that, no court shall take cognizance of any offence unless the complaint is made within one month of the date on which the cause of action arises, would become ­otiose. (Paras 18 & 19)

       The upshot of the discussion is, on the date when the notice sent by Fax reached the drawer of the cheque the period of 15 days (within which he has to make the payment) has started running and on the expiry of that period the offence is completed unless the amount has been paid in the meanwhile. If no complaint was filed within one month therefrom the payee would stand forbidden from launching a prosecution thereafter, due to the clear interdict contained in Section 142 of the Act. In this case the complainant has admitted the fact that written notice was sent by fax. Appellant has admitted its receipt on the same date. (It must be remembered that respondent has no case that fax has not reached the appellant on the same date). The last day when the respondent could have filed the complaint was 26.7.1996. But the complaint was filed only on 8.8.1996. So the court has no jurisdiction to take cognizance of the offence on the said complaint. (Paras 22 & 23)

       (ii) Interpretation of Statutes—Allowance for relevant changes that have occurred since Act’s passing—Court’s duty to use interpretative proc­ess. (Paras 16 & 17)

       Result : Appeal dismissed.