Is a Notice of Demand u/S.138(B) of the N.I. Act Given by An Advocate Valid or Sufficient

(Joseph Thattacherry, Advocate, Changanacherry)

It is the common practice among advocates to issue notice to others under instructions from their prospective clients to the opposite parties. Now, the question discussed herein is about the legality of such a notice given by an advocate making a demand for payment of cheque amount from the drawer of a dishonoured cheque u/S.138(b) of the N.I. Act as amended by Act 66/88 (hereinafter referred to as the Act).

S.138 of the Act is undoubtedly a penal provision and as such it is settled law that its provisions have to be strictly complied with, in order to make the drawer of a dishonoured cheque criminally liable. S.138 of the Act mandates that "nothing contained in this Section shall apply unless" Clauses (a), (b) & (c) are complied with. (emphasis supplied).

In order to make the drawer liable all the above conditions precedent, have to be complied with. The mandatory nature of the section gives no choice to the courts to show any laxity in the non-fulfilment of the above conditions.

Clause (b) of S.138 of the Act requires the fulfilment of some pre-requisite conditions in order to make the section applicable. One among those conditions is that the payee or the holder in due course, of the cheque should make a demand for payment of the cheque amount. From a reading of clause (b) it is crystal clear that the notice of demand should be made by the payee or the holder in due course as the case may be (emphasis supplied) and not by anybody else. That is the clear intention of the Parliament. Had its intention been otherwise, it would have employed the words "or by anybody or his behalf" or likewise, as we find in S.106 of the Transfer of Property Act, where the notice of termination of the lease has to be given by the lessor or the lessee. The section further says that every notice under this section must be in writing signed by or on behalf of the person giving it". Since such a provision is conspicuiously absent in S.138(b) of the Act no court can supply such words enabling other persons also to give notice on behalf of the payee or holder in due course, which the Parliament in its wisdom has deliberately omitted to insert. Any construction or interpretation by adding new words to payee or holder in due course so as to enable other persons also to issue notice, especially when it is prejudicial to the interest of the drawer accused, is unwarranted. When the Parliament has categorically specified that the payee or the holder in due course as the case may be has to make the demand by giving notice in writing to the drawer in order to make S.138 applicable, if any other person makes the demand by giving notice such a notice does not conform to the provisions of law and is invalid and S. 138 will not apply.

Similar words are used in S.142 of the Act. Therein Clause (a) says that no court shall take cognizance of any offence punishable under S.138 except upon a complaint in writing made by the payee or as the case may be the holder in due course of the cheque. Interpreting the clause Hon'ble Mr. Justice Pratap Singh of the Madras High Court held in 1994 (2) KLT SN Case No.23 at page 17, that a manager or any person authorised by the company can represent it and file a complaint. But the very same Judge after further consideration of the section subsequently in a case reported in 1995 (1) KLT SN Case No.19 at page 14 took an opposite view. In that case, the Manager of 4 Companies filed 3 complaints as a person duly authorised by the company to file the complaints. In that case, the court held "in as much as he is not the payee or holder in due course of the cheque he cannot file these complaints as per the provisions of the Act. Thus a person who is competent to file the complaint under S.138 of the Act must be payee or holder in due course. By no stretch of imagination, it can be stated Selvamany who is the Manager of the Company is the payee or holder in due course". Hon'ble Mr. Justice Narayanan Nambiar held as reported in 1996 (1) KLT 398 that "a combined reading of the provisions of S.138 and 142 of the Act will make it clear that it is only the payee or holder in due course who can file a complaint". It was a case in which the son of the deceased payee filed 3 complaints under S.138 of the Act, in his capacity as the executor of the will of his father. The complaints were quashed on the ground that the complaints were not made by the payee or holder in due course. So, in the light of the above decisions the words payee or holder in due course used in S.138(b) also cannot be construed so as to include anybody else other than the payee or holder in due course. Hence, it is submitted that a notice of demand given under S.138(b) by an advocate under instructions by a client is not in compliance with the provision and is invalid and insufficient. As such S.138 of the Act will not apply.

S.198, 198(A), S.199 of Cr.P.C. say that no court shall take cognizance of offences described therein, except upon a complaint made by the person aggrieved by the offence or by same persons specified therein or with the leave of the court by some other persons. Thus, with the leave of the court only can a complaint be instituted by somebody else other than person mentioned therein. So, wherever the Parliament permits persons other than the aggrieved party, it does so in so many words. So long as it is not done in respect of persons end tied to issue notice Under S.138(b) the restricted meaning above should be given. However no leave of the court could be obtained while giving a notice of demand. So a notice of demand should be given by the payee or holder in due course alone.

In 1993 (2) KLT 698 the question raised was "can the payee or holder in due course of a cheque file a complaint in court as per S.142 of the NI Act, through his power of attorney holder. Hon'ble Justice Mr. K.T. Thomas held that be can. One of the reasonings is that a power of attorney holder can do everything empowered by the donor, except where the acts to be performed is personal in character. Here in the case of a notice under S.138(b), the right to demand and to receive the cheque amount is indeed a persona] right. So that reasoning is not applicable in the case of a notice of demand. Another reason was that if the payee or holder in due course falls ill before the stipulated period or if he has to leave the station owing to unavoidable reasons, it would not be in the interest of justice to construe the provision as constraining a restriction that the complaint should be made by the payee or the holder in due course, as the case may be, personally. But such considerations has no relevancy or application in the case of a notice of demand by the payee or holder in due course to be issued personally. Because even in his sick bed at home or in I.C. unit, either illiterate or incapacitated, he could very well affix his signature or thumb impression in a notice of demand in his own name but written by somebody else. Again even if he is abroad he could easily send a telegram or fax a message demanding payment, so that it would reach the drawer within hours. Hence, the reasonings in support of holding that the power of attorney holder is also competent to file a complaint in the interest of justice, will not hold good in the case of a notice of demand under S.138(b) issued by anybody other than the payee or holder in due course. The observation in the decision that a complaint can be filed by an agent is only obiter dicta. Its various aspects and impacts were not considered in the judgment. If that be so any person could easily claim that he is an agent of the payee or holder in due course, the only restriction being that he should be a major and of sound mind. If an advocate could issue a valid notice of demand, why not his clerk or his office typist could also issue such a notice of demand. Such a situation was never intended by the Parliament.

Assuming that a donee of a power of attorney of the payee or holder in due course could validly issue a notice of demand, since the advocate who issues such a notice is not a power holder of the payee or holder in due course, notice issued by him is invalid and not in conformity with Clause (b) of S.138 of the Act. Hence, S.138 of the Act will not apply if a notice of demand under S.138(b) is not given by the payee or holder in due course. There is no difficulty for an advocate to prepare a notice of demand in the name of the payee or holder in due course himself and ask him to sign and send it to the drawer of the cheque - that bounced in strict compliance with the provision of law.

Sidelights On 'Contempt'

(T.G. John, Advocate, Trichur)

"The Karachi Bar Association has learned with great regret and concern of the undeserved insults given by the Hon'ble Chief Judge to the President of the Karachi Bar Association, Mr. Syed Ahmed Refique, Barrister-at-Law, and to an outstanding member of (his Association Mr. M. A. Alvi, Advocate and places on record that in its opinion the attitude of the Hon'ble Chief Judge has been persistently contemptuous towards the members of the Bar in general and the displaced lawyers in particular, making it impossible for them to keep up the well-known tradition of the Bar, of placing their clients' causes before a bench adequately and fearlessly. This Association further affirms that the learned profession of law is the mainstay of the liberty and the rights of the citizens and the courts will be undermining the foundation of the State by a disregard of the rights of the lawyers and this Association warns the learned Chief Judge that if there is a further repetition of this behaviour, this Association will be forced to take measures which it sincerely wishes to avoid".

On 15th June, 1949, at a meeting of the Karachi Bar Association, the above resolution was moved by Syed Ahmed Refique, the President of the Bar Association. The Secretary Mr. Raza Mirza supported the resolution. In its issue on 17th June, 1949, the "Dawn", a Karachi Daily newspaper reproduced most of the resolution under the caption "Karachi Lawyers Resent Chief Judge's Attitude".

When these matters were brought to the notice of Sind Chief Court notices were issued to the President and the Secretary and also Altaf Hussain, the Editor and Ghulam Hussain, the printer and publisher of "Dawn" to show cause why they should not be punished for contempt of the court. Tyabji, C.J. had no hesitation to hold that the imputations and threats contained in the resolution were such as were calculated to lower the authority of the Chief Judge and the Court and further expressed that it would be impossible to argue that the matter published was merely a reasonable argument or expostulation against some particular judicial acts as being contrary to the law or the public good. The Judge also referred to 33 Bombay 252 (Government Pleader v. Jaganath Samant) where Scoot, C.J. stated "Pleaders are a privileged class enrolled for the purpose of rendering assistance to the courts in the administration of justice. Their position, training and practice give them influence with the public and it is directly contrary to their duty to use that influence for the purpose of bringing the administration of justice into contempt'. However, in the Karachi case, in view of the unqualified apologies handed over by the two advocates to the Advocate General before the commencement of the hearing and the peculiar circumstances of the case, the Judge discharged the notice against all the parties with the further following observation: "We have reason to believe that Syed Ahmed Refique, the President of The Bar, was the prime mover behind the resolution and that it was personal pique arising from offended vanity, which had led him astray into the irresponsible course which he followed. Under these circumstances, the humiliation involved in the recantation which he was constrained to make, in the presence of his fellow Advocates and in a crowded Court, may in itself, I think, be regarded as a fitting punishment for an offence, which appears to have been committed very largely as the result of false pride".

The principle governing contempt of courts has been neatly elucidated by Lord Russel in his judgment in Reg v. Gray (1900) 2 Q.B. 36). It has been made clear by his Lordship that any act done or writing published calculated to bring a court or judge of the court into contempt or lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is a contempt of court. The former class belongs to the category which Lord Hardwick L.C. characterized as "scandalizing a Court or Judge". The description of mat class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no court could or would treat that as contempt of court.

In AIR 1967 Allahabad 586, it was held that the concept of contempt of court by scandalizing court, as modified in England and Austria has no application in India. The social and economic conditions of the public in India are again such that it would be very dangerous to grant them the liberty of scandalizing the court. In the Supreme Court Judgment in E.M. Sankaran Narnboodiripad v. Narayanan Nambiar (1970 K.L.T. 588), Hidayatulla, C.J. observed; "The spirit underlying Article 19(1)(a) must have due play, but the provisions of the second clause of the Article cannot be overlooked while it is intended that there should be free speech and expression, it is also intended that in the exercise of that right contempt of court shall not be committed".

As far as our country is concerned, the law regarding contempt of court had been neatly codified as early as 1926 with successive enactment upto 1971. It would have been highly salutory that in view of the onerous duties of the Advocates, the Legislature was munificent enough to envisage an enactment on the line of "Contempt of the Bar Act" also. It is upto the Bar Councils to take some interest in the matter.

The Japanese Doll

(By T.G. John, Advocate, Trichur)

Major Gurbaksh Dhillon was an army officer of great distinction who received his training at Sandhurst and saw active service in 1945 on the Burma Front against the Japanese. The major had lost an eye in the battle but this was cleverly replaced by a glass eye. The loss of an eye however made him unfit for active service but in view of his past record he was not discharged or pensioned off but was retained in a semi-military position as the supervisor of Ordinance factories.

Major Dhillon was tall, fair, well built, always clean-shaven and remarkably handsome even at 40. His semi-civilian job in the capital gave him plenty of lesiure and he took membership in a club which was a high class aristocratic gathering. The affluence of the club and its members was manifest not only from the large cluster of shining limousines parked outside and attended to by an army of smart leverlied chuffeurs, but also from its gleaming furniture of fittings, its very fine gardens and well kept lawns. Major Dhillon was in his elements at the club for not only could he drink whisky like a fish, smoke like a chimney and play bridge and poker till late at night, but he could talk for hours together about his exploits in the many wars he had wethered. Gradually, he began to win the admiration of high society women folk at the club and men became envious of his great alacrity in winning the favour of women and called him the lady-killer.

Major Dhillon was particularly familiar at the club with the family of the Syals-Sardar Pritam Singh Syal and his wife Mohini Syal. Pritam Singh was one of the richest men in Delhi but at the age of 35, triggered by wine, women and riches he had become a huge loathsome bundle of flesh, stupidity and ego, fit for only bouts of booze and debauchery. On the other hand, Mohini was chic and charming as a Japanese doll with chiselled features and a figure that likened her to venues de Medicz by Michaelangelo. She was a graduate with refined manners and she was always dressed to kill. The major with all his fighting records surrendered to this beautiful woman with captivating charms.

Before long the blue Mercedes car of the major became a constant sight in the afternoons in the portico of Syal's bungalow. Gossip took wings and reached the ears of Pritam Singh between his bouts of booze and debauchery. He stopped taking Mohini to the Club and warned the major that he would shoot him down if ever the major was found in this precincts of his house. To watch Mohini more closely, Pritam Singh himself stopped going to the club and his orgies of drink and debauchery were carried on in his own house to his satisfaction and he took sadistic pleasure in his wife witnessing it.

Several months elapsed. The blazing heat of the summer was followed by the deluge of the rainy season and soon autumn arrived the season of mellow fruitfulness and fragrances. It was Diwali day and crackers were exploding everywhere. From Pritam Singh's house also the sound of crackers were heard thoughout the evening. At about midnight three loud explosions rang out from inside after which there was silence.

Next morning Pritam Singh was found dead in his house. The floor was littered with bottles of whisky and rum and broken glasses. There were two wounds on his body and a pistol which was identified as Pritam's was lying close to him and from all appearances it seemed to be suicide. The first jolt was however given by the postmortem report. The fatal bullet which had penetrated the heart seemed to be different from the second bullet which had penetrated the right thigh. The fatal bullet from its diameter, weight, and groove markings appeared to the investigating officers as one ejected from a military service revolver. The problem for investigation was this - Two empty shells had been ejected form Pritam Singh (automatic pistol) but only one was found on his body. Where had the second bullet gone? The answer to the question was found by the police when they throughly searched the rooms. The second bullet was found embedded in the wooden door near the entrance.

The fatal bullet having been ejected from a military service revolver and Major Dhillon's entalglements with Pritam's family well known in the locality, the police arrested Major Dhillon on suspicion. On being interrogated by the Police the major made a clean breast of the whole matter.

That he loved Mohini Syal like a sister and was still wearing a 'Raksha' from her on his wrist and that nothing obscene or objectionable had taken place between them. On account of scandals and Pritam's suspicion, she was virtually a prisonerin the house. Mohini was much upset by all this and she implored him through letters to come to the house and reclaim her husband from the depth of degradation to which he was sinking by this nightly orgies in his own house. At first he hesitated but finally he acceded. On Diwali Day, he went to the house of Pritam Singh where he expected to find Pritam alone, Mohini having gone to her parents for the festivity. The major had armed himself with a service revolver knowing that Pritam Singh was a dangerous rogue. Pritam Singh at the sight of the major accosted him in a fit of rage, 'you lewd wretch, I will teach you a lesson' and took out a pistol and immediately fired at the Major. The shot missed the mark because Pritam was fully drunk and the recoil of the weapon threw it down on the floor. Thereupon the major took his own revolver and shot him with the precision of a military veteran. Pritam Singh lurched forward and slumped on the floor and the pistol in his hand went off again by the shock of his fall thereby causing the wound on his leg.

Major Dhillon was sent up for trial on a charge of murdering Pritam Singh Syal but was acquitted on the plea of the right of self defence, since there was clear evidence that Pritam Singh fired the first shot.

Arsenic and Old Lace

(T.G. John, Advocate, Trichur)

Arsenic is the poison most often used by murderers because if it is administered in small but regular doses, it produces a condition which looks like normal illness, Frustrated lovers, anxious heir-at-laws impatient to succeed to rich estates—all have adopted this 'modus operandi'. But many cases of poisoning with arsenic have been detected because of certain peculiar properties of this 'King of poisons'.

Arsenic has a big disadvantage; traces of it can be found in the corpse or in the ground surrounding the grave for years afterwards. Prussic acid, yellow phosphorous, and morphine disappear fairly rapidly but arsenic always remains to give evidence against its user. Science can indicate from the contents of the stomach, the condition of the hair or the nails of a corpse just when arsenic was administered. And that takes us to the story of Harold Greenwood who in 1920 was accused of murdering his wife by poisoning her with arsenic.

Harold Greenwood was a rich solicitor in the village of Kidwelly, in Carmarthenshire, He had very lucrative practice and his wife Mabel was the sister of a former Lord Mayor of London. But Mrs. Greenwood was an invalid. Harold was a philanderer with many affairs and there was widespread gossip in the village of Kidwelly about his infidelities. Mrs. Greenwood was well liked about the fact that she was an invalid caused special sympathy.

And then if happened. Quite suddenly Mabel was taken ill and after twelve hours of vomiting, she died. The death did not by itself arouse any suspicion in the minds of the rustics of Kidwelly. But when just within two weeks of his wife's death Harold began chasing woman, they opened their eyes. And when four months later he remarried, the villagers of Kidwelly began 'to talk'.

The village gossip started which eventually reached the ears of the police and led to the exhumation of Mrs. Greenwood's body, ten months after her death: Science found one grain of arsenic had been administered within twenty-four hours of her death.

Trial followed. The tempestuous oratory of the defence counsel, Sir Edward Marshall Hall, rocked the court hall, baffled the prosecution and left the jury gasping. The counsel was able to throw some doubt on the cause of death, partly because the village doctor said at the inquest that he had given Mrs. Green wood morphine pills. The doctor had not done anything of the sort but when he retracted the statement and said he meant opium pills which contain some morphia, the damage was done.

Several wild theories were also put forward by the defence. It was suggested that Mrs. Greenwood had inhaled arsenic from roses which had been sprayed with insecticide: Further suggestion was that she might have eaten gooseberries for dinner sprayed with the same fatal insecticide: The last suggestion was that she had been using arsenic in certain cosmetic preparations. There was no evidence to support these theories.

It is always dangerous in poison cases for the prosecution to allege that the poison was administered by a particular means. And this blunder, the prosecution committed in the Greenwood's case. The prosecution pinned its faith to the bottle of burgundy from which Mrs. Greenwood had drunk at lunch on the day before her death. They proved Harold Greenwood had arsenic in his possession, but they were wrong when they said that nobody else had drunk the wine except the dead woman. Somebody else had and somebody else said so.

The verdict of the Jury was "We are satisfied that a dangerous dose of arsenic was administered to Mabel Greenwood on Sunday 15th June 1919. We are not satisfied that this was the cause of death. We say not guilty."

Harold Greenwood left the dock a free man!

Blood Test in Paternity Dispute

(S.A. Karim, M.Com. L.L.B., Advocate, Thiruvananthapuram)

Blood test means human blood test. It becomes necessary to decide disputed paternity. The paternity issue arises in family and property disputes. In such case, direct evidence is not probable and the litigant relys on circumstantial evidence. A clear, convincing and reliable evidence is very remote. Therefore, the litigant turns to the time tested scientific evidence like blood group test. Jaisingh P. Modi is an authority in medical jurisprudence. His book 'Medical Jurisprudence and Toxicology', 20th edition, page 93, states "no blood group antigen can appear in a child, unless it is present in either or both of the parents. An antigen from a homozygous blood group must appear with blood of the child". This is not the conclusive test, but there is more chance. It excludes a suspected father or mother. The latest scientific achievement in this field is D.N. A. test. It revolutionises medical diagnosis, forensic work and solves old mysteries.

The Supreme Court in a Division Bench decision in Goutham Kundu v. State of West Bengal, held that a child born during lawful wedlock is legitimate and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence and not by mere balance of probabilities. It is reported in 1993 Criminal Law Journal 3233, 1993 SCC (Cri.) 928 and AIR 1993 SC 2295. The Apex Court refuses, to declare a child bastard and a mother unchaste based on scientific evidence. This decision is relied in Gomathi v. Vijayaraghavan of the Madras High Court, reported in 1995 Crl. Law Journal 91. Therefore, the Court takes shelter on Ss.4 and 112 of the Evidence Act.

S.112, Evidence Act, deals with legitimacy of child. It reads "the fact that any person was born during the continuance of valid marriage between his mother and any man or within two hundred and eighty days after its desolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of the man, unless it can be shown that the parties to the marriage had no access to each other at any time, when he could have been begotten. S.4 of the Evidence Act, states the principle of conclusive proof when one fact is declared by this Act to be conclusive proof of another, the court shall on proof of one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".

Modi's blood group test theory and the latest D.N.A. test are challenge to S.112 Evidence Act. It is due to the enormous growth of science and technology. With all humility, I submit, the decision of Supreme Court in Goutham Kundu v. State of West Bengal, gives new lease of life to S.112 of the Evidence Act, and shuts out the litigant from scientific evidence.