Section 138 of the Negotiable Instruments Act, 1881 (henceforth referred as the Act) provides for conception of criminal proceedings against a person, whose cheque has been dishonoured, deeming it to be an act alike cheating. The section provides for service of a notice of demand of the amount, upon the drawer, so that in case of a default the same can be corrected and the necessary payment could be made by the drawer of the cheque. If the amount is not paid within stipulated time, then a complaint can be made on the basis of the aforesaid notice. The courts have interpreted the abovementioned act or offence as a technical offence along with the requirements of the legal notice in a technical manner, in spite of accepting the fact that the complainant is the victim in such a case.
The courts have observed such an instance as a technical error on the part of the drawer of the cheque because it is presumed that the drawer would have known, at the time of drawing the cheque, how much money he can draw. The severity of this error is increased on non-payment of the concerned amount, within 15 days of service of notice, and thereby becomes punishable. This shows that there exists only a presumption that there is an error which is rebutted at the end of fifteen days, if the amount is not paid.
It is for this reason that the notice is also scrutinized in a technical manner. Since it is required that notice should contain a demand therein, the demand is expected to be correctly written.
The dispute arises when there is a typographical error in the demand mentioned in the notice. In order to adjudicate such an instance, the principle lies in the fact that whether it should be dealt with, in an objective manner or the notice should be considered as a whole
Court's Perception
Bearing in mind the object of issuance of such notice, it should be held that the notices cannot be construed in a narrow technical way without examining the substance of the matter (Rajneesh Aggarwal v Amit J Bhalla, AIR 2001 SC 518; 2001 (1) SCALE 36). Though the courts have upheld the requirement of the demand in the notice to be correctly mentioned, they have made exceptions wherever they have found that the objective of the notice has been fulfilled.
The provision has been given a rather strict interpretation in Yankay Drugs & Pharmaceuticals Limited v The Citibank 2001 Cri LJ 4157 by the Andhra Pradesh High Court in which it held that the interpretation of the words “the said amount of money” refer to the words ‘payment of any amount of money’ occurring in the main section 138 i.e., the cheque amount. So the amount has to be made of the cheque amount. It is well settled principle of law that the notice has to be read as a whole. If no such demand is made the notice no doubt would fall short of its legal requirement. A different manner to look in such cases has been seen in Arun v G Sankara Narayanan MANU/TN/8329/2007 in which the court dismissed the petition of accused against a complaint in the notice of which the amounts of the cheques were mentioned correctly but the demand was mentioned wrongly. This was complimented by the fact that the accused had sent an acknowledgement of the cheques and mentioned the actual demand. In Kempanarasimhaiah alias Kemparaju v P. Rangaraju 2009 Cri LJ 1228, also, the Karnataka High Court chose to make an exception to the rule, laid in Yankay Drugs case, on the premise that the amount of only one cheque, out of four cheques, mentioned in notice had an error and the rest were correct. But, though the demand expressed in the notice was wrong, the complaint and affidavit to examination in chief, mentioned the amounts of the cheques and the demand correctly.
The context envisaged in Section 138 of the Act invites a liberal interpretation, as in above illustrations, for the person who has a 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 [M/s Dalmia Cement (Bharat) Ltd. v M/s Galaxy Traders & Agencies Ltd., AIR 2001 SC 676; (2001) 6 SCC 463]. The premise for service of notice is to give a chance to the drawer of the cheque to rectify his omission and that the demand in the notice has to be in relation to ‘said amount of money’ as described in the provision [Central Bank of India v M/s Saxons Farms & Ors, 1999 Cri LJ 4571]. The courts have moved away from the rule of strict and literal interpretation to the Heydon’s Rule of Interpretation i.e. interpretation which furthers the object and purpose of the statute. A division bench of the Kerala High Court held in Thomas Verghesev P Jerome (1993) 76 Comp Cas 380, that when the scheme and object of the statute are likely to be defeated by strict interpretation, courts must endeavour to resort to that interpretation which furthers the object of the legislation. The most succinct statement on the Heydon’s Rule being the basis of interpretation is clearly discernible in NEPC Micon Ltd v Magma Leasing Ltd (1999) SCC (Cri) 524; AIR 1999 SC 1952, wherein the Supreme Court has held that what must tilt the balance is the purpose of the statute, its potential frustration and judicial avoidance of the mischief by a construction whereby the means of licensing meet the ends of ensuring pure and potent remedies for the people .The Court further held that even though s 138 is a penal statute, it is the duty of the court to interpret it consistently with the legislative intent and purpose so as to suppress the mischief and advance remedy. But, a word of prudence has also been given by the court in Shri Ishar Alloy Steels Ltd v Jayasuls NECO Ltd (2001) 105 Comp Cas 1, wherein the court has held that, ‘it has always to be kept in mind that s 138 of the Act creates an offence and the law relating to penal provisions has to be interpreted strictly, so that no one can ingeniously or insidiously or guilefully or strategically be prosecuted’.
Therefore, the purpose of the notice is primarily not merely to inform the defaulter that such an instance has happened but to inform him that which of his cheques or promissory notes have been dishonoured and it is required by him to do the needful. In this context, it is the Court that decides whether or not the message conveyed in the notice is enough for the defaulter to find out which transaction is in question. Therefore, for the purpose of serving the object of enactment of this Act, the Courts should condone typographical errors as a rule and not in abstract instances. But, this will be against the technicality of demand as mentioned earlier. In various judgments the court has observed, that the demand in the notice should be specific. Since the offence is technical, therefore a notice can also fail on the ground of technicality.
