2007 (1) Bankmann 17
KERALA HIGH COURT
R. Basant, J.
Aniyan Thomas Chacko — Petitioner
versus
Thevarvelil Bankers — Respondents
Crl. R. P. No. 2824 of 2006
Decided on 16-8-2006

IMPORTANT POINT
Fundamentally defective and erroneous notice u/s 138(b) of Negotiable Instruments Act against which vital objection was raised by accused in reply, will not set the clock of limitation ticking.

Headnote:(i) Negotiable Instruments Act, 1881—Section 138 and 139—Dishonour of cheque—Prosecution—Will limitation for filing complaint start on lapse of 15 days from date of receipt of notice which was defective and accused by reply disputed its validity? No—On receiving cheque unpaid due to insufficient funds, complainant-respondent sent notice and petitioner accused sent reply that no such cheque was issued—Complainant realized that crucial mistake had crept into notice as cheque was actually drawn on State Bank of Travancore but notice mentioned cheque to have been drawn Indian Overseas Bank—Complainant presented cheque against and on receiving it unpaid issued fresh notice—Accused did not respond to that notice and complaint was filed—Conviction by Courts below—Revision—Whether conviction was vitiated due to limitation starting from 1st notice? No.

       Held: Accordingly to me, Ext D4 notice, which evoked Ext. P8 reply, clearly shows that the petitioner wanted to take up the vital defect in the notice as the ground to claim exculpation from liability. He has stated specifically that such a cheque as described in the notice (drawn on Indian Overseas Bank, Pathanamthitta Branch

       bearing the number 089583 for Rs. 50,000) has not been issued by him to the complainant. I am not on the question whether the complainant, could still have successfully contended before the courts that Ext. D4 notice, notwithstanding the error in the description of the name of the bank, must be reckoned as a valid notice. In an appropriate case where such an error/inadequacy in the notice, though fundamental and crucial, does not result in any prejudice to the accused, it may be open to a court to hold that notwithstanding the error in the notice the same can be reckoned as a valid notice of demand. But it will be improper, according to me, to compel the complainant to pursue the prosecution further when such vital defect was committed by his counsel in respect of the cheque in the notice of demand. He had time available with him. i.e. six months from the date of cheque-within which he could present the cheque again and make a proper notice of demand if the dishonour was repeated by the bank. In such a situation, I am of opinion that it will be unfair, unjust and unreasonable to insist that the complainant must pursue the prosecution on the basis of the fundamentally and vitally defective notice issued by his counsel. Different would be the situation if the indictee did not raise any objection and accepted the notice as a sufficient and satisfactory one. Ext. P8 reply specifically shows that the accused was capitalizing on the error committed by the counsel in Ext. D4 notice. That being so, the complainant cannot be found fault with for not taking a risk in respect of the prosecution based on Ext. D4 notice of demand. Against which vital contentions were raised in Ext. P8 reply notice. (Para 11)

       According to me, it would be unfair, imprudent and unreasonable to compel the complainant to reckon Ext. D4 as a proper notice of demand when the indictee, the petitioner herein, raised a very specific contention that the notice was not proper and that no such cheque had been issued by him to the complainant. That would be compelling the complainant to take a most unreasonable risk, especially when the accused is entitled to the benefit of doubt, which may be claimed by him on the ground that he was confused as to the identity of the cheque, regarding which the notice was issued.

       I am, in these circumstances, of the opinion that the fundamentally defective and erroneous notice, Ext. D4, against which vital objection was raised by the accused in Ext. P8 reply, will not set the clock of limitation ticking. The notice being a defective and unsustainable notice as contended by the accused and as accepted by the complainant, the cause of action cannot be said to commence with such a notice. Any contra interpretation, I am afraid, will run counter to the scheme of Section 138 of the N.I. Act and would defeat the purpose which law seeks to achieve. It is now trite, and hence it is not necessary to advert to specific precedents, that even a penal provision must receive a purposive construction and not a literal and over technical interpretation. The purpose which the statute has to achieve cannot be lost sight of by the adjudicator and the interpreter. So reckoned, I am certainly of the view that Ext. D4 does not in any way set the clock of limitation ticking and the prosecution launched on the basis of the subsequent notice of demand, Ext. P5, is perfectly valid, legal and sustainable. The challenge raised on this ground therefore fails. (Paras 13 and 14)

       (ii) Negotiable Instruments Act, 1881—Section 139—Plea of discharge is an onerous plea—Burden must normally be held to be on litigant who pleads discharge. (Para 9)

       Result: Revision dismissed.