2020 (5) TMI 729 - HC - Indian Laws

Dishonor of Cheque - accused is guilty for the offence punishable under Section 138 of the Negotiable Instruments Act or not - acquittal of the accused - statutory notice received by the accused does not contain the signature of the Advocate - whether a lawyer notice issued, without the signature of the lawyer can be treated as a defective notice? HELD THAT - 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. - From the 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. The omission on the part of a lawyer to put his signature in the notice issued under Clause (b) of proviso to Section 138 of the Negotiable Instruments Act, cannot be treated as defective notice. That is not a reason to acquit an accused in a prosecution under Section 138 of the Negotiable Instruments Act, especially when the Section does not stipulate that, a signed notice in writing is necessary for initiating a prosecution under Section 138 of the Negotiable Instruments Act. The defective notice is the main reason for acquitting the accused in this case. In this case, even though notice was issued by this Court to the accused, the accused refused to appear before this Court. Since the offence involved in this case is under Section 138 of the Negotiable Instruments Act and if the accused is intending to settle the issue, it is opined that, an opportunity is to be given to him - After giving an opportunity to adduce evidence to both sides, the learned Magistrate should hear the parties and pass appropriate orders in accordance to law, in the light of the findings in this judgment. The case is remanded to the trial court. The trial court will dispose of the same in accordance with the law - appeal allowed.

Summary

Issues involved:
1. Appeal against acquittal under Section 138 of the Negotiable Instruments Act based on the validity of the notice served.
2. Interpretation of the requirement of a notice under the proviso to Section 138 of the Negotiable Instruments Act.
3. Examination of whether a lawyer notice without the lawyer's signature can be considered defective.
4. Consideration of previous court judgments on the requirement of notice in cases under Section 138 of the Negotiable Instruments Act.

Analysis:
The judgment pertains to an appeal filed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act based on the validity of the notice served. The complainant alleged that the accused issued a cheque that was dishonored due to a stop payment instruction, leading to the complaint. The lower court acquitted the accused citing the absence of the lawyer's signature on the statutory notice as the reason. The High Court analyzed the legal requirement of the notice under the proviso to Section 138 of the Act, emphasizing that the notice should be in writing but does not explicitly mandate a signed notice. The court referred to various dictionary definitions of 'notice' to support its interpretation.

The High Court further examined the notice sent by the lawyer on behalf of the complainant, which was accepted by the accused without any response. The court opined that the absence of the lawyer's signature does not render the notice defective, especially when it clearly demands payment. Referring to previous judgments, including one by the Apex Court, the court highlighted that the purpose of the notice is to provide an opportunity for the drawer of the cheque to rectify the situation and avoid prosecution under Section 138. The court emphasized that notices should be construed sensibly and not in a hyper-technical manner.

Consequently, the High Court allowed the appeal, set aside the lower court's order of acquittal, and remanded the case back for further proceedings. The court directed the trial court to provide an opportunity for the accused to settle the matter and adduce additional evidence if necessary. The judgment underscored that no de novo trial was required, and the trial court should proceed in accordance with the law and the findings of the High Court. The court stressed the need for expeditious disposal of the case due to its registration in 2005.