TMI Blog1999 (9) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... ittal and convicted his brother of the offence under Section 138 of the Negotiable Instruments Act (for short 'the Act'). Perhaps the accused would have remained quiet by then, but for the sentence of imprisonment (six months) which he has now to undergo besides a fine of rupees one lakh which the High Court has imposed on him. So this time it is the turn of the accused to move and hence he has filed this appeal. 3. We thought that the two brothers would settle their disputes over this cheque case and we granted sufficient opportunity to both . But the battle is destined to continue as the expected settlement eludes like a mirage. We do not know at whose fault the parleys went away. We cannot but proceed with the case and so we heard the counsel for both. 4. Before dealing with the two main points on which the counsel argued in this Court we may set out the facts in brief. The respondent (who will hereinafter be referred to as the 'complainant') presented a cheque which bears the signature of the appellant (hereinafter referred to as the 'accused') before the Syndicate Bank's branch office at Kayamkulam (Kerala) on 29.1.1993 for encashment. The che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof the Magistrate acquitted the accused. 9. The High Court of Kerala, on the appeal preferred by the complainant, set aside the order of acquittal and converted him and sentenced him as aforesaid. Learned single judge of the High Court accepted the version of the complainant that cheque was issued at the shop of PW-3 which is situated within the territorial limits of the Trial Court's jurisdiction. Regarding notice, learned single judge relied on the decision of a Division Bench of the same High Court Kunjan Panicker v. Christudas (1997) 2 Kerala Law Times 539 wherein it was held that refusal and even failure to claim in circumstances as here will tantamount to service of notice. 10. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The Trial Court was not persuaded to rely on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocal area and partly in another local area the Court in either of the localities can exercise jurisdiction to try the case. Further again, Section 179 of the Code stretches its scope to a still wider horizon. It reads thus: 179. Offence triable where act is done or consequence ensues. -When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. 14. The above provisions in the Code should have been borne in mind when the question regarding territorial jurisdiction of the Courts to try the offence was sought to be determined. 15. The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence : (1) Drawing of the cheque, (2) Presentation of the cheque to the bank, (3) Returning the cheque unpaid by the drawee bank, (4) Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days 'of the receipt' of the said notice. It is, therefore, clear that 'giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer in the correct address. 20. In Black's Law Dictionary, 'giving of notice' is distinguished from 'receiving of the notice.' (vide page 621) A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it. A person 'receives' a notice when it is duly delivered to him or at the place of his business. 21. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the Act does not require that the notice should be given only by 'post'. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sender unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. 26. Thus, when a notice is returned by the sender as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in Clause (c) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the present case the accused did not even attempt to discharge the burden to rebut the aforesaid presumption. 27. The High Court is, therefore, right in holding the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, (Hari Kishan and State of Haryana v. Sukhbir Singh and Ors. ). No limit is mentioned in the sub-section and therefore, a magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a court of magistrate of first class in respect of a cheque which covers an amount exceeding Rs. 5,000 the Court has power to award compensation to be paid to the complainant. 33. The question of sentence and award of compensation must be considered by the Trial Court. We deem it feasible that the magistrate shall hear the prosecution and the accused on those aspects. Of course, if the complainant and accused settle their disputes regarding this cheque, in the meanwhile, that fact can certainly be taken into consideration in determining the extent or quantum of sentence. 34. We, therefore, uphold the conviction of the offence under Section 138 of the Act, but we set aside the sentence awarded by the High Court for enabling the trial court to pass orders on the question of sentence and the compensation, if any p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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