IMPORTANT POINT
Notice need be given within 30 days under provision to Section 138 and if notice is despatched before expiry of 30 days by post/courier or other means, that would be sufficient compliance of proviso (b) to Section 138 of N.I. Act.

R. Basant, J. — Should the notice of demand under proviso (b) to Section 138 of the Negotiable Instruments Act be issued such that the drawer shall receive the notice within the period of 30 days? Is it sufficient if such notice is put into post within the said period of 30 days? How is the expression “by giving a notice in writing within thirty days of the receipt of information” in proviso (b) to Section 138 of the Negotiable Instruments Act to be understood? Does the observation in Madhu v. Omega Pipes Ltd.,1 that such notice must be despatched “reasonably ahead of the expiry of fifteen days” oblige the complainant to despatch such notice in such time as to ensure receipt within 30 days? These are the interesting questions that arise for consideration in this case.

2. Fundamental facts are not in dispute. The cheque dated 29.4.2005 for Rs.80,000 was dishonoured on 3.5.2005 and intimation was given of such dishonour on the same day. Notice of demand dated 1.6.2005 was issued on 1.6.2005. It was put into post on 1.6.2005 and was received by the drawer on 4.6.2005. If it is sufficient that despatch of the notice is made within 30 days, the notice is sufficient and proper. On the contrary, if despatch of the notice must be so made as to ensure receipt within 30 days, we will further have to consider the question whether a notice despatched on 1.6.2005 would have ordinarily reached the complainant on or before 2.6.2005.

3. Provisos (b) and (c) to Section 138 of the Negotiable Instruments Act are relevant. I extract the said clauses:

“138. Dishonour of cheques for insufficiency, etc., of funds in the account.

xxx xxx xxx

Provided that nothing contained in this section shall apply unless:

(a) xxx xxx xxx

(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 thirty 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. (emphasis supplied)

4. A question was raised whether receipt of the notice must be insisted within the period (15 days as per the law at the relevant time) in Madhu v. Omega Pipes Ltd., (supra). His Lordship Mr. Justice K. T. Thomas clearly held that the expression “give notice” is not synonymous with “receipt” of the notice and in these circumstances, it would be sufficient if despatch of the notice is made within the stipulated period and the receipt by the drawer is after the said period. But His Lordship in para-6 of the said decision posed the following question and finally answered the same in para 7 in the following words:

“6. ....Is it enough that he sends it just two or three days before the end of the said period since the postal authority would take the notice to the address with reasonable despatch and promptitude?

7. ….Hence the realistic interpretation for the expression “giving notice” in the present context is that if the payee has despatched notice in the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period.”

5. The learned counsel for the petitioner contends that to fall within the dictum in Madhu v. Omega Pipe Ltd., (supra), the complainant must have issued (put in post) the notice well prior to 3.5.2005 to ensure its receipt before 3.5.2005. The contention hence is that it is not enough if the notice is sent within 30 days; but it must be sent within 30 days to ensure receipt within such period of 30 days.

6. The expression “give” must admit many shades of meanings. In former days the expression “giving” could have been treated as synonymous with the exp