IMMANUAL Vs. M K RAJAPPAN
HIGH COURT OF KERALA
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(1.) Proviso (b) to S.138 of the Negotiable Instruments Act says that the payee or the holder in due course of the cheque has to make a demand for payment of the amount of money covered by the cheque 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 and the question which arises for consideration is whether the expression "receipt of information" used in the above proviso means receipt of information in writing. A learned Judge of this Court Mohamed Shafi, J. held in John v. George Jacob ( 1999 (2) KLT 699 ) that the expression "receipt of information" used in proviso (b) to S.138 of the Negotiable Instruments Act means receipt of information in writing and not a mere oral information. In the above proviso it is stated that the payee or the holder in due course of the cheque has to make a demand for payment of the amount by giving a notice in writing. When mentioning about giving of notice it is said that the notice will have to be in writing whereas in saying about receipt of information it is not mentioned in the proviso that the information has to be in writing.
(2.) Another learned Judge of this Court, Krishnan Nair, J. before whom this appeal came up for hearing, made a reference for the above question being considered and decided by a Division Bench and thus this appeal comes up for consideration before us on reference. In the order of reference what the learned Judge says is that he cannot agree with the view expressed by the learned Judge in John's case (supra) and hence the matter requires consideration by a Division Bench. In this case even though the details of the reasons are not given in the reference order, it is possible to understand from the order that the learned Judge, who made the reference, is of the view that the receipt of information as envisaged in proviso (b) to S.138 need not be in writing.
(3.) Chap.17 was inserted in the Negotiable Instruments Act by the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 and the provisions in that chapter provide that where any cheque drawn by a person for the discharge of any liability, is returned by the bank unpaid for the reason of the insufficiency of the amount of money standing to the credit of the account on which the cheque was drawn or for the reason that it exceeds the arrangements made by the drawer of the cheque with the bankers of that account, the drawer of such cheque shall be deemed to have committed the offence. The amendment has been made to the Negotiable Instruments Act to enhance the acceptability of cheque in settlement of liabilities by making the drawer liable for the penalties in case of bouncing of cheques due to insufficient arrangements by the drawer. In making provisions for ensuring the acceptability of cheque in settlement of liabilities sufficient safeguards have also been made to prevent harassment of honest drawers by providing that no Court shall take cognizance of the offence except on a complaint in writing made by the payee or the holder in due course of the cheque. There is also provision which says that the complaint has to be made within one month of the date on which the cause of action arises. The provisions in the above Chapter were incorporated with the specific purpose of safeguarding the faith of the creditor in the drawer of the cheque.;
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