2007 (3) KLT 392
Hon'ble Mr. Justice K. Thankappan
Bhavani Auto Distributors v. Muraleedharan
Crl. A. No.567 of 1999
Decided on 1st June, 2007
Negotiable Instruments Act 1881, S.138 Proviso (b) -- Sending of notice in correct address of accused and return of same with endorsement “unclaimed” are sufficient for purpose of due compliance with S.138(b).
Sending of notice in the correct address of the accused and return of the same with endorsement “unclaimed” are sufficient for the purpose of due compliance with S.138(b) of the N.I. Act”. The burden of the appellant to prove that the notice was given to the 1st respondent was discharged, as it has come out in evidence that the postal authorities have given intimation of the notice to the 1st respondent to whom it has to be given. If so, it is the duty of the 1st respondent to show that the notice was not in the correct address or not served on him. (para. 7)
1994 (1) KLT 441; AIR 1966 SC 330;
(2001) 1 SCC 631 & 2002 (3) KLT SN 46 (C.No.64) Referred to
2005 (1) KLT 877
Hon'ble Mr.Justice J.M. James
Sheela v. Gopalakrishnan
Crl. A. No.643 of 2004.
Decided on 28th January, 2005.
Negotiable Instruments Act 1881, S.138 proviso (b) - Notice received by wife of accused when notice was sent in the correct address - Is sufficient notice.
The proof of sending of the notice in the correct last known address is sufficient compliance, as contemplated under S.138 of the Act. As the wife of the accused had admittedly received the notice, according to me, it is not at all necessary for the complainant to cite and examine the postman or the wife of the accused to show that she had been duly authorised by the accused to receive Ext.P4 notice. In the light of the evidence available on record, it is for the accused to rebut the evidence regarding the receipt of Ext.P4 notice. But he stated that he came to know of the fact of the payment of amount, and dishonour of the cheque only after going through Ext.P4 notice received by his wife. Hence, considering the evidence on record, I hold that the complainant has issued notice as contemplated the Act, and the same had been received by the accused. (para.10)
1994 (1) KLT 441
K.T. Thomas, J.
Madhu v. Omega Pipes Ltd.
Crl. M.C. No.1941 of 1993
Decided on 18th January, 1994.
Negotiable Instruments Act 1881, S.138-Meaning of the word "giving notice"- It cannot be said that there is no "giving" of notice until notice is delivered to the drawer of the cheque - If the payee has despatched notice in the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period.
In the above context it is useful to know that in clause (e) of the proviso the drawer of the cheque is given fifteen days from the date "of receipt of the said notice" for making payment. This affords clear indication that "giving notice" in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer in his correct address. If receipt or even tender of notice
is indispensable for giving the notice in the context envisaged in clause (b) an evader would successfully keep the postal article at bay at least till the period of fifteen days expires. Law shall not help the wrong doer to take advantage of his tactics. Hence the realistic interpretation for the expression "giving notice" in the present context is that, if the payee has despatched notice in the correct address of the drawer reasonably ahead of the expiry of fifteen days, it can be regarded that he made the demand by giving notice within the statutory period. Any other interpretation is likely to frustrate the purpose for providing such a notice.