The dispatch of notice to the correct address reasonably ahead of the statutory period constitutes 'giving notice' within the context of the proviso to Section 138 of the Negotiable Instruments Act, 1881.

What is meant by the expression "giving a notice in writing" in the context in which it is used in clause (b) of the proviso to Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') ? According to the petitioner, there is no "giving" of notice until notice is delivered to the drawer of the cheque. If the said contention deserves acceptance, the complaint filed against the petitioner is liable to be dismissed. As the judicial Magistrate of first class took cognizance of the offence upon the institution of complaint and issued process to the accused, he has filed this petition under section 482 of the Criminal P.C. for quashing the proceedings.

2. The case spelled out in the complaint, in short, is that the cheque issued to the complainant for Rupees two lakhs was returned dishonoured due to insufficiency of funds in the account and the bank intimated the fact to the complainant through a memo dated 19-5-1993; the complainant sent notice by registered post to the accused on 21-6-1993 demanding payment of the amount; and the notice was received by the accused on 24-6-1993. If date of receipt of notice is the crucial date in the process of "giving notice" as envisaged in Clause (b) of the proviso to Section 138 of the Act, the notice should have been received at least on 23-6-1993. The said clause reads thus :

"Provided that nothing contained in this section shall apply unless -

(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 fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;"

3. Shri K. Kunhirama Poduval, advocate, who argued the case for the petitioner, relied on the following observations of the Supreme Court in Narasimhiah v. Singri Gowda (AIR 1966 SC 330 at p. 332) :

"Giving of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however "giving" is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete".

Learned counsel for the petitioner invited my attention to the decision of a Division Bench of this court which has followed the said observations (Govinda Rao v. Addl. Secretary, (1937) 1 Ker LT 253 : (1987 Cri LJ 731). Bhaskaran Nambiar, J. has observed in the decision that "the expression (giving of notice) understood in the common parlance would convey that the notice must be served or tendered in order to complete the process of giving of such notice."

4. The aforesaid interpretation is particularly relevant in the context in which the expression "giving of notice" has been used in the respective enactments. In Narasimhiah's case (AIR 1966 SC 330) the Supreme Court considered the scope of a notice contemplated in the proviso to Section 27(3) of the Mysore Town Municipalities Act, 1951 in connection with a no confidence resolution moved against the President of a Municipality. As per that proviso, no such resolution shall be moved unless at least fifteen days' notice has been given of the intention to move the resolution. In Govinda Rao's case (1987 Cri LJ 253) the Division Bench of this court considered the scope of a notice contemplated in Section 79 of the Gold Control Act, 1968, in which adjudicatory proceedings are not to commence unless the owner of the contraband "is given a notice in writing". In both provisions the expression has been used in passive voice while in Clause (b