IMPORTANT POINT
The omission on the part of a lawyer to put his signature in the lawyer notice issued under Clause (b) of proviso to Section 138 of the Negotiable Instruments Act, cannot be treated as a defective notice.

JUDGMENT :

The above appeal is filed by the complainant in C.C. No.19 of 2005 on the files of the Judicial First Class Magistrate-1, Harippad. The 1st respondent herein is the accused in the above case. The above case was filed by the appellant against the 1st respondent for prosecuting him under Section 138 of the Negotiable Instruments Act, 1881. (hereinafter the parties are mentioned according to their rank before the trial court)

2. The case of the complainant in nutshell is as follows:

The accused had borrowed an amount of Rs.50,000/- from the complainant. Towards the payment of the said legally enforceable debt amount, the accused had issued a cheque on 11.11.2004. But the cheque when presented in the bank was dishonoured due to “stop payment” instruction by the accused. Though statutory notice demanding the said amount was issued to the accused, he did not make the payment even after receipt of the same. Hence, the complaint.

3. To substantiate the case, PW1 and PW2 were examined on the side of the complainant. Exhibits P1 to P8 are the exhibits marked on the side of the complainant. Exhibits D1 and D2 are the exhibits on the side of the defence.

4. On going through the evidences and documents, the lower court found that, the accused is not guilty for the offence punishable under Section 138 of the Negotiable Instruments Act. Aggrieved by the order of acquittal, the present appeal is filed by the complainant.

5. The appeal was admitted and notice was issued to the accused. Even though, the accused received notice, he refused to appear before this Court. Hence, this appeal is heard after hearing the counsel for the complainant and the learned Public Prosecutor.

6. The short point on which the learned Magistrate acquitted the accused is that, the statutory notice received by the accused does not contain the signature of the Advocate. Exhibit P5 is the copy of notice produced by the complainant. The accused produced the original of Ext.P5 as Ext.D1. In Ext.D1, the Advocate has not signed. The question to be decided is, whether a lawyer notice issued, without the signature of the lawyer can be treated as a defective notice.

7. There is no form of notice is prescribed under Clause (b) of the proviso to Section 138 of the Negotiable Instruments Act. The proviso only says that

“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”. There is nothing in clause (b) of the proviso to Section 138 of the Negotiable Instruments Act to show that, it should be a lawyer notice and the notice should be a signed notice. The literal meaning of 'notice' as per Chambers 20th Century Dictionary is “intimation:announcement:information:warning:a writing, placard, board etc. conveying an intimation or warning.”

As per the Oxford Advance Learners’ Dictionary, New 9th edition, the ‘notice’ is interpreted as “paying attention, giving information, announcing, warning etc.” P.Ramanatha Aiyar’s Concise Law Dictionary defines ‘notice in writing' like this: “The word ‘notice’ denotes merely an intimation to the party concerned of a particular fact. It cannot be limited to a letter. Notice may take several forms. It must, to be sufficient, be in writing and must intimate quite clearly that the award has been made and signed.”

8. From the above literal meaning of 'notice', it is clear that, nowhere it is stated that, a notice should be in a signed form. As stated above, Clause (b) of proviso to Section 138 of the Negotiable Instruments Act also not stipulates a signed notice in writing. What is stated in the proviso is “giving a notice in writing” and not “by giving a notice in writing with signature.” For this simple reason, the finding of the learned Magistrate that Ext.P5 notice issued by the complainant is defective, cannot be accepted.

9. Exhibit D1 is a notice sent by a lawyer. The same was accepted by the accused. There was