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TMI Blog2007 (10) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... he said cheques and calling upon them to make payment of the amount of cheque, stating; 4. Our clients presented all the aforesaid cheques for payment on 16th March, 2000 through their bankers, Saraswant Co-op Bank Ltd., Woli Branch, Mumbai 400 018. All the aforesaid cheques were dishonoured and returned to our clients by their bankers, vide advice dated 16th March, 2000, with the remark Funds Insufficient, which was received by our clients on 16/3/2000. 5. Under these circumstances, we hereby give you notice under section 138 of the Negotiable Instruments Act, 1881, as amended to date to make payment of the said sum of Rs. 5,31,47,792/- payable by you to our clients being the aggregate amount of the aforesaid dishonoured cheques, together with interest thereon at the rate of 18% p.a. from 16th March 2000, within fifteen days of receipt of this notice by you, failing which our clients shall be constrained to initiate criminal proceedings against you under section 138 of the Negotiable Instruments Act, 1881 at your entire risk as to costs and consequences. 5. The said notice was not sent under registered cover with acknowledgment due. Even the couriers service was not availed. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hifted premises of Accused No. 1 to avoid the service of the notice upon him and the accused No. 1 company. The complainant relies upon the affidavit of the representative of the Advocates of the Complainant trust who visited the premises of the Accused No. 1 to serve the statutory notice upon the accused. 8. Relying on or on the basis of the purported statements made on the complaint petition as also the affidavits of the aforementioned two clerks, cognizance was taken by the learned Metropolitan Magistrate, 33rd Court Ballard Pier, Mumbai on 24.4.2003. 9. Appellants having been summoned, filed an application for recalling of the processes served on them inter alia on the premise that the requirements to comply with proviso (c) appended to Section 138 of the Act having not been complied with, issuance of summons was illegal. 10. By an order dated 24.4.2003, the said plea was rejected by the learned Magistrate stating: . The second point raised by the accused is that the statutory notice under section 138 was not served on the accused. In this regard it is to be noted that the service was effected by hand delivery. It is also contended in the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Court by the complainant themselves. The question here is not of believing or disbelieving the evidence that is produced by the complainant though one may say that the so called evidence of attempt of service is far from being free from doubt. But I am not passing this order on that ground. I have considered only the complainant before the trial court. On examination of only that material and the complainant case it has to be held that since the most important aspect was not even part of the complainant case in the trial court as discussed above the process could not have been issued in the first instance and at least after the application for recall was made it had to be recalled. In the result the revision applications must succeed. I therefore pass the following order. 12. The High Court on the second revision filed by the respondent herein, however, passed the impugned order stating; To my mind, the averments made in the complaint together with affidavit of the advocate and the evidence and the document and the verification etc. clearly mention that the service of the notice was by hand delivery, would be sufficient for issuance of process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 16. Section 138 of the Act contains a penal provision. It is a special statute. It creates a vicarious liability. Even the burden of proof to some extent is on the accused. Having regard to the purport of the said provision as also in view of the fact that it provides for a severe penalty, the provision warrants a strict construction. Proviso appended to Section 138 contains a non-obstante clause. It provides that nothing contained in the main provision shall apply unless the requirements prescribed therein are complie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 21. In Maxwell Interpretation of Statutes, the learned author has emphasized that provisions relating to giving of notice often receive liberal interpretation (vide p. 99 of the 12th Ed.). The context envisaged in Section 138 of the act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to make a demand by giving notice. The thrust in the clause is one the need to make a demand . It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does. 20. See also C.C. Alavi Haji (supra). Reference may also be made to Municipal Corporation of Delhi Vs. Qimate Rai Gupta & Ors. [JT 2007 (9) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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