K MADHU Vs. OMEGA PIPES LIMITED ERNAKULAM

JUDGEMENT

(1.) 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 S.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 S.482 of the Code of Criminal Procedure 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 S.138 of the Act, the notice should have been received at least on 23-6-1993. The said clause reads thus:

(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 ):