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1996 Supreme(Ker) 261
Judges : G.RAJASEKHARAN
Viswanathan - Appellant
Versus
Ramachandran Nair - Respondent
Case No : Crl. A. No. 402 of 1993
Decided On : 07/26/1996
Advocates Appeared :
Siby Mathew, P.A. Reziya & P.S. Varghese For Appellant P.C. Joseph & Public Prosecutor (S. U. Nazar) For Respondents
The sufficiency of the notice under S.138(b) of the Negotiable Instruments Act and the interpretation of the requirement for the notice to demand payment.
Headnote:
Negotiable Instruments Act - Acquittal of Offence under S.138 - S.138 - Summary
Fact of the Case:
The respondent executed a cheque to the complainant for a consideration of Rs. 1,00,000, which was dishonoured. The trial court found the accused guilty under S.138 of the Negotiable Instruments Act and convicted and sentenced the accused. The appellate Court reversed the finding and acquitted the accused.
Finding of the Court:
The appellate Court found the notice of dishonour to be insufficient and acquitted the accused on the ground of limitation.
Issues: The sufficiency of the notice under S.138(b) of the Act and the correctness of the lower appellate Court's finding.
Ratio Decidendi: The notice under S.138(b) of the Act should mention the fact of issuance of the cheque, presentation for encashment, dishonour, and demand for the money covered by the cheque. The number of the cheque is incidental, and a mistake in the number does not necessarily make the notice improper.
Final Decision: The appeal is allowed, and the acquittal by the first appellate Court and the conviction and sentence by the trial court are set aside. The case is remitted back to the trial court for a fresh consideration of all the points and disposal of all the questions involved in the case in accordance with law and in the light of the observations made in this judgment.
G. Rajasekharan, J.
An appeal by special leave against the acquittal of the respondents of the offence under S.138 of the Negotiable Instruments Act (for short'the act).
2. The complaint was that for a consideration of Rs. 1,00,000/- the respondent executed a cheque to the complainant, which was duly presented, but was dishonoured. A notice of dishonour - Ext. P3 - was issued in which there was a mistake in the number of the cheque. That was corrected and Ext. P5 was subsequently issued. In response to Ext. P3, payment was not made within the statutory period and so, the complaint under S.138 of the Negotiable Instruments Act.
3. The learned Magistrate considered the contentions and reached the conclusion that the cheque in question was drawn by the accused and the presumption under S.139. of the Act has not been rebutted. It was further held that the cheque was dishonoured when presented, that the notice of dishonour was issued and that in spite of that demand no payment was made.
4. It was contended that mere was no proper notice under S.138(b) of the Act and Ext. P5 the correction notice was issued beyond time and so, no cause of action has been made out. That contention was repelled by the trial court and according to the trial court, Ext. P3 is a proper notice conforming to the requirements of the statute and the mistake in that notice regarding the number of the cheque is only incidental and immaterial in the circumstances of the case. On the above premise, the accused was found guilty of the offence under S.138 of the Act and convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for three more months.
5. The accused took the matter in appeal before the Sessions Court as Appeal No. 71 of 1991. The appellate Court reversed the finding regarding the sufficiency of Ext. P3 and on the ground of limitation, the accused was acquitted. The lower appellate Court has observed:
"So, the accused has not succeeded in rebutting the presumption under section 139, so as to escape from criminal liability.
But added:
"Of course, it is a matter to be decided by a Civil Court on better evidence".
6. The acquittal by the appellate Court is challenged in this appeal by special leave.
7. It. was argued at the Bar that if Ext. P3 is taken as a sufficient notice under S.138(b) of the Act, the complaint is within time and there is a cause of action for the same. According to the learned counsel for the appellant, the lower appellate Court has erred in finding that Ext. P3 is not a proper notice. For and against the point that Ext. P3 is a proper notice, a few decisions were cited at the Bar which were dealing with the sufficiency or otherwise of notice under S.80 C.P.C.
8. In the decision reported in AIR 1960 Allahabad 530 (M/s. Ahmad Hassan v. The Union of India) in a suit based on a railway receipt the notice under S.80 C.P.C. which did not mention the number of the railway receipt or quoted the number wrongly was found to be insufficient disclosing a cause of action. This decision was distinguished in AIR 1962 Allahabad 307 (Harish Chand. v. The Union of India) and it was held that the non-mention of the number of the railway receipt or mention of the number of the receipt wrongly will not make a notice under S.80 C.P.C. insufficient or improper. The said decision was followed in AIR 1966 Allahabad 16 (Firm Deokishan Srigopal v. Union of India). (1993 (2) Crl. Q. 2072 (Santosh Kumar Sharma v. Motilal Mahawar) also lays down the same principle. Under S.80C.P.C. notice should disclose correctly the cause of action for suit. Such a requirement is not available in S.138(b) and so the rigour is less in the latter case. S.138(b) is in the following terms:
"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 fifte
