IMPORTANT POINT
Telegraphic demand of amount covering dishonoured cheque, can be regarded as notice within the meaning of clause (b) of proviso to Section 138 of Negotiable Instruments Act and drawee can not say that since telegram was not given within 15 days of dishonour of cheque same should not be treated or considered as notice.

N.G. Nandi, J. - In this petition under Section 482 of the Criminal Procedure Code (hereinafter referred to as "the Code") the petitioner has been praying to quash the complaint case titled Ashok Kumar Sharma v. Yoginder Kumar Sharma", pending in the Court of learned Metropolitan Magistrate, Karkardooma Courts, Shahdara, Delhi.

2. It has been mainly contended by Mr. M.R. Chawla, learned Counsel for the petitioner that a cheque issued can be presented for realisation as many times as one wants within the validity period of the cheque but once the cheque returns dishonoured and notice under clause (b) of proviso to Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the Act") is served by the payee/holder in due course, then the complaint has to be filed within one month from the date of the receipt of the notice by the drawer on failure to make the payment. It is further contended that the telegraphic demand by the payee after the return of the cheque should be treated as a notice under clause (b) of proviso to Section 138 of the Act. In this regard reliance has been placed on the decision in the case of M/s. SIL Import, U.S.A. v. M/s Exim Aides Silk Exporters, Bangalore1. As against this, it is submitted by Mr. A.K. Vemia, learned Counsel for the respondent that the telegram dated 30-3-1994 cannot be regarded as notice within the meaning of clause' (b) of proviso to Section 138 of the Act. Since it is beyond the period of 15 days, as contemplated in clause (b) of the said provision; that the cheque was again preserited on 16-8-1994 and notice under clause (b) of proviso to Section 138 of the Act was issued on 14-8-1994 and the complaint filed on 20-9-1994 and that it is open to the complainant to present the cheque as many times as he wants within the validity period and that the cause of action for the purpose of prosecution under Section 142 of the Act would arise only when there is refusal or failure to make the payment in response to the notice under clause (b) of proviso to Section 138 of the Act.

3. It will be seen from the, above that the moot question involved in this, petition is whether the telegraphic demand of the amount covering the dishonoured cheque can be regarded as a notice within the meaning of clause (b) of proviso to Section 138 of the Act or not. '

4. In the case of M/s. SIL Import, USA v. M/s Exim Aides Silk Exporters, Bangalore (supra), it has been held that 'Notice in Writing' occurring in Section 142 of the Act includes modem devices and equipment already in vogue Technical advancement like Fascimile, Internet, E-mail, etc. were on swift progress even before bill for Amendment Act was discussed by Parliament". It is further held that so if the notice envisaged in clause (b) of proviso to the Section 138 was transmitted by fax it would be compliance with the legal requirement".

5. The lower Court record which is produced is perused. Para 6 of the complaint filed on 20-9-1994 mentions that the complainant tried to contact the accused but the accused kept evading meeting the complainant. Then the complainant had to send a telegram dated 24-3-1994 to the accused that Ws cheque had bounced and that he should repay the loan with-in five days to avoid legal action. The Trial Court record also contains two telegrams one dated 24-3-1994 at page 179. which reads:

"YOUR CHEQUE BOUNCED. REPAY LOAN WITHIN FIVE DAYS TO AVOID. LEGAL ACTION."

The telegram dated 30-3-1994 at page 185 reads:

"REMINDING YOU AGAIN TO PAY MY LOAN IMMEDIATELY YOUR CHEQUE ALREADY BOUNCED."

It will be seen from the above telegrams that the same are by the payee/holder in due course Ashok Sharma, after the dishonour of the cheque dated 1-3-1994. Specific demand has been made therein requiring the drawer of the cheque in question to pay the loan immediately as the cheque had already bounced.

6. I am not inclined to accept the submission on behalf of the respondent that telegram dated 30-3-1994 cannot be regarded as a n