Does the observation inMadhu v. Omega Pipes Ltd

W.P.(C) NO.11638 OF 2007-I -: 3 :-writing, to the drawer of the cheque, within thirty days of the receipt ofinformation by him from the bankregarding the return of the cheque asunpaid; and (c) the drawer of such cheque fails tomake the payment of the said amount ofmoney 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 thesaid notice.(emphasis supplied)4. A question was raised whether receipt of the noticemust be insisted within the period (15 days as per the law at therelevant time) in Madhu v. Omega Pipes Ltd., (1994(1) KLT441). His Lordship Mr. Justice K.T. Thomas clearly held that theexpression “give notice” is not synonymous with “receipt” ofthe notice and in these circumstances, it would be sufficient ifdespatch of the notice is made within the stipulated period andthe receipt by the drawer is after the said period. But HisLordship in para-6 of the said decision posed the following W.P.(C) NO.11638 OF 2007-I -: 4 :-question and finally answered the same in para-7 in the followingwords:“6. ............... Is it enough that hesends it just two or three days before theend of the said period since the postalauthority would take the notice to theaddress with reasonable despatch andpromptitude?7. ............. Hence the realisticinterpretation for the expression “givingnotice” in the present context is that if thepayee has despatched notice in the correctaddress of the drawer reasonably ahead ofthe expiry of fifteen days, it can beregarded that he made the demand bygiving notice within the statutory period.”5. The learned counsel for the petitioner contends that tofall within the dictum in Madhu v. Omega Pipes Ltd., (1994(1)KLT 441) the complainant must have issued (put in post) thenotice well prior to 3/5/05 to ensure its receipt before 3/5/05.The contention hence is that it is not enough if the notice is sentwithin 30 days; but it must be sent within 30 days to ensure W.P.(C) NO.11638 OF 2007-I -: 5 :-receipt within such period of 30 days.6. The expression “give” must admit many shades ofmeanings. In former days the expression “giving” could havebeen treated as synonymous with the expression “taking” or“receipt”. “Giving” is the process of which “receipt” is theculmination. In a one to one personal transaction of giving andtaking both acts fuse in the same conduct, “giving” being thecommencement of the process and “receipt/taking” thesimultaneous final point of that transaction. But life presentsmyriad situations where there can be a gap of time between theact of giving such a notice and the act of receiving/taking. Yes, the expression “giving” may include the acting of taking also atthe end of it in a normal case; but there may be many situationswhere an inevitable gap of time and space may be there betweenthe two acts. Law cannot be unequal to life. Interpretationmust meet the challenge of law – to conform to the practicalrealities of life. The interpreter cannot be a mere die hardlinguist. He must harmonise the inherent limitation of semanticsto the practical realities of life as also the challenges before law.In doing so legislative goals, dreams and vision must be imbibed W.P.(C) NO.11638 OF 2007-I -: 6 :-by the interpreter. He must resonate to the frequency of thelegislature. 7. While proviso (b) to Sec.138 of the NegotiableInstruments Act speaks of giving the notice, proviso (c) refers tothe act of receipt. The different acts contemplated under theprovisos (b) and (c) have to be performed within the timespecified in those provisos. Inevitably and unmistakably we findthat the law did contemplate notice in writing to be issued bypost. Sec.94 of the Negotiable Instruments Act speaks of themodes in which notice has to be given and notice by post is aperfectly legal method by which notice can be given. I extractSec.94 of the N.I. Act below:“94. Mode in which notice may begiven.-- Notice of dishonour may be givento a duly authorized agent of the person towhom it is required to be given, or, wherehe has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may bein any form; but it must inform the party towhom it is given, either in express terms orby reasonable intendment that the W.P.(C) NO.11638 OF 2007-I -: 7 :-instrument has been dishonoured, and inwhat way, and that he will be held liablethereon; and it must be given within areasonable time after dishonour, at theplace of business or (in case such party hasno place of business) at the residence ofthe party for whom it is intended.If the notice is duly directed and sentby post and miscarries, such miscarriagedoes not render the notice invalid.”The legislature when it enacted, Sec.138 of the NegotiableInstruments Act was evidently conscious of Sec.94 whichpermitted and did mandate the giving of notice by post. In acase where notice is not given directly and is given through theagency of post/courier etc., the legislature was aware of theinevitability of the gap of time between the act of giving and theact of receiving. This has realistically been taken note of inprovisos (b) and (c) when different points of time were fixed forgiving of notice and to comply with the demand in such noticesafter receipt of that notice. The conclusion appears to beinevitable, in these circumstances, that to constitute the act of W.P.(C) NO.11638 OF 2007-I -: 8 :-giving in Sec.138(b) it is enough if notice in writing is put intopost before the expiry of 30 days. Even if it were doneimmediately prior to mid night on the 30th day, that would besufficient compliance of the mandate of Sec.138(b) of theNegotiable Instruments Act. So far as the period of limitationfor payment under proviso (c) is concerned, it is the date ofreceipt of the said notice which is crucial and vital. HisLordship Mr. Justice K.T. Thomas was not concerned in Madhuv. Omega Pipes Ltd., (1994(1) KLT 441) with the situationwhich we have on hand at present. The question raised in para-6 and the answer given in para-7 do eminently convey this fact.In holding that the notice has to be despatched “reasonablyahead of the period”, his Lordship evidently had only intendedthat the rubicon at the end of the period fixed (i.e., 15 days then)shall not be crossed. It would therefore be, according to me, unreasonable and myopic to spell out a dictum from the saidobservations that it is not enough if notice is put into post withinthe period of 30 days and it must be put into post in such time sothat receipt within 30 days can be ensured. That would beagainst the dictum in Madhu v. Omega Pipes Ltd., (1994(1) W.P.(C) NO.11638 OF 2007-I -: 9 :-KLT 441) where it is clearly held that the date of receipt is notcrucial or relevant and it is the date of giving – i.e., despatch ofthe notice, which is crucial and vital when we consider whethernotice has been given in time.8. I do, in these circumstances, come to the conclusionthat notice need be given within 30 days under proviso (b) toSec.138 and if notice is despatched before the expiry of 30 daysby post/courier or other means, that would be sufficientcompliance of proviso (b) to Sec.138 of the NegotiableInstruments Act.9. That being the answer to the question of law raised, thepetitioner does not have any ground to get the prosecutionagainst him quashed by invoking the extraordinary inherentjurisdiction under Sec.482 of the Cr.P.C.10. In the result, this writ petition fails and is dismissed.Sd/- (R. BASANT, JUDGE)Nan///true copy//P.S. To Judge