A Critical Note on 2000 (1) KLT Journal 35

(By J. Krishna Kumar, Advocate, Ernakulam)

This article is intended to critically analyse the article published in 2000 (1) KLT Journal 35, written by Sri. Kausar Edappagath, Advocate. In that article the learned Author has criticised the Judgments passed by the Honourable High Court in Jancy Joseph v. Union of India (1999 (1) KLT 422) and in Malappuram Private Bus Operators Association v. Mohan (1999 (2) KLT 898).

In Jancy Joseph's case (supra) the High Court reversed the Consumer Form's order by holding that the Consumer Forum shall not order the arrest or detention of a woman in execution of a decree for payment of money and also held that S.56 of C.P.C. is squarely applicable to execution proceedings before Consumer Forum. In Malappuram Private Bus Operator's case (supra) the High Court reversed the order of Malappuram Consumer Disputes Redressal Forum and held that the Bus passenger is not a consumer as defined under S.2(d) of Consumer Protection Act, as far as Regional Transport Authority is concerned, and further held that the Consumer Forum has no jurisdiction to try the case relating to fare stage of Bus Service.

The learned author of the said article is attacking the above 2 decisions mainly on two grounds. First reason is that, as Consumer Protection Act has created a hierarchy, the aggrieved party's remedy is only to file Appeal before the higher authority prescribed in the Act and the order of Consumer Forum is not amenable to writ jurisdiction. Second aspect is that in Jancy Joseph's case (supra) High Court has extended application of provisions of C.P.C. in execution proceedings before Consumer Forum. According to the learned author it is against the legislative intent and the Act has restricted applicability of C.P.C. only to certain purposes prescribed under S.13(4) of the Consumer Protection Act. Except for the purposes prescribed in S.13(4), provisions of C.P.C. is not applicable to proceedings before Consumer Disputes Redressal Forum, the author opines.

In this context first question to be discussed is that, whether the Consumer Forum is amenable to writ jurisdiction?

Under Art.227 of the Constitution, the High Court has the power of superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. The power of superintendence conferred on High Court is very wide. That does not mean that the power is unfettered. This power is extraordinary in nature which is to be exercised in appropriate cases in order to keep the subordinate courts within the bounds of their authority and to provide justice in demanding circumstances. In the following instances order of courts, Tribunals and authorities are subjected to judicial review.

i) When there is want or excess of jurisdiction

ii) When there is procedural irregularity or disregard of natural justice

iii) When there is error of law apparent on the face of the record but not error of fact.

In the above circumstances High Court can exercise writ jurisdiction to control the authority. In State of U.P. v. Mohammad Nooh (AIR 1958 SC 86) the Supreme Court hold that 'writ of certiorari' is issued to a body performing judicial or quasi judicial function for correcting error of jurisdiction, as and when an inferior court of tribunal acts without jurisdiction, or in excess of it, or fails to exercise it. In a recent decision (Alice Kutty v. Kadambazhappuram Grama Panchayat (1996 (2) KLT 203) the High Court reiterated this dictum and further held that in such cases High Court can invoke its power under Arts. 226 and 227 of the Constitution. In Syed Yakoob v. Radhakrishnan (AIR 1964 SC 477) the Honourable Supreme Court held that an error of law which is apparent on the face of the record can be corrected by a writ of certiorari.

A writ of certiorari is issued against a court or Tribunal when it acts in flagrant violation of principles of natural justice. If the order of the authority is in violation of natural justice, without preferring appeal, the aggrieved party can approach the High Court by invoking its extraordinary jurisdiction. In such cases alternative remedy is not a bar to invoke extraordinary jurisdiction of the High Court. In Pradeep v. Kandanassery Panchayath (1996 (2) KLT 775) the Honourable High Court held that a writ of certiorari can be issued in a case where there has been a denial of natural justice before a court of summary jurisdiction dispute exercise of alternative remedy.

Even if the hierarchy of forums are created under Consumer Protection Act, the power of judicial review vested with High Court clothed with constitutional mandate cannot be taken away. It is also unwise and highly risky to do so. The constitutional safeguard provided to protect the citizens from the arbitrary acts of the authorities cannot be lightly converted by new legislation. In Sajeevi v. State of Kerala 1994 (2) KLT 127 (FB) High Court held that existence of alternative remedy does not taken away the jurisdiction of the High Court to grant relief.

In Keshavananda Bharath's case (AIR 1973 SC 1461) it was held that judicial review is an integral part of the constitutional system and basic feature of constitution. In a yet another landmark decision (Chandrakumar v. Union of India (AIR 1997 SC 1125 at p. 1150) this dictum was reiterated by the Hon'ble Supreme Court. The position in common law is same that of our system. English courts are also invested with writ jurisdiction as that of High Courts in India. In Electricity Commission case (1924) 1 KB 205 Lord Atkin J., observed that 'whenever anybody of persons having legal authority to determine questions affecting the rights of the subjects and having the duty to act judicially, and if they act in excess of their legal authority, they are subjected to the controlling jurisdiction of the Kings Bench Division exercised in the writs'. In this context I would like to quote from the speech delivered by his Lordship Justice K.T. Thomas reported in 1997 (2) KLT Journal 23 that "All public authorities are under the jurisdiction of law and that judicial Review is a power inextricably intervened with the higher court of land, namely High Court and Supreme Court. Based on all the above aspects and decisions discussed supra, one can firmly agree with the proposition that order of consumer forum is amenable to writ jurisdiction.

The second point to be discussed is whether the High Court has erred in extending S.56 of CPC in execution proceedings before Consumer Forum.

According to the learned author of the Article in 2000 (1) KLT Journal 35, provisions of C.P.C. is made applicable in a proceeding before Consumer Forum, is only for limited purposes mentioned under S.13(4) of the Act. I am of the firm opinion that the High Court has rightly held that the order of Consumer Forum shall be executed in the same manner as a decree of a Civil Court. S.3 of the Consumer Protection Act clearly prescribes that the Act shall be an addition to and not in derrogation of other laws for the time being in force. By conjoint reading of S.3 and S.25 of the Act legislative intent is clear and unambiguous. Even though the Consumer Protection Act is a benevolent legislation, Consumer Forum can render justice only in accordance with law in force. In M.l. Builders Pvt. Ltd. v. Radhay Shyam Sahu (1999) 6 SCC 464 para 73, Supreme Court observed that 'Justice is to be rendered only in accordance with law'.

Third point to be discussed is whether the High Court has erred in legal and factual grounds in Malappuram Private Bus Operators (supra) case.

According to the learned author of above article the Consumer Forum has power to decide the fare stages as per S.3 as well as under S.1(4) of the Act. He also opined that the bus passenger is a consumer as defined under S.2(d) of the Act. In my view Consumer Forum has no jurisdiction to deal with farestages or fare of stage carriage in the light of bar prescribed to Civil Court's jurisdiction under S.94 of M.V. Act. Moreover S.3 of the Consumer Protection Act specifically states that the Act is not in derrogation of other laws for the time being in force. As Motor Vehicles Act is a special enactment which governs Motor Vehicles, for the fixation of fair stage etc. it will prevail over the Consumer Protection Act. The maxim 'generalia specialibus non derrogat' which indicates that the provisions of Special Act overrides the provisions in General Law. The High Court rightly held that, a bus passenger is not a consumer as far as R.T.A. is concerned. As R.T.A. is not providing any service to the bus passenger, there is no deficiency of service from the part of R.T.A. Likewise the bus passenger is not paying any consideration to the R.T.A., the bus passenger is not a consumer as far as R.T.A. is concerned. Hence it is clear that the bus passenger is not a consumer and lacuna in fare stage fixation is not a deficiency of service from the part of the R.T.A.

On the basis of the above discussions with due respect to the learned author of above referred articles, I am constrained to state that the said article is written without considering the legal and factual aspects relevant to the issue and the said article unnecessarily subjected two well reasoned judgments of the Hon'ble High Court to unwarranted criticism. 

Nobility of Legal Profession

(By N. Dharmadan, Advocate, Ernakulam)

This noble profession of lawyers, viz., the system of engaging trained persons by litigants for arguing the cases on his behalf before a Court of law is an institution of ancient origin. If we trace the genesis of advocacy it can be seen that originally it was really a free service for others. In Greece there was a system to allow persons to appear gratuitously in court for litigants and speak on his behalf. In Rome advocacy took its earliest form in the relationship between patron and his client to explain the law by patron on behalf of his client. In England during the reign of Henry Ilnd certain persons having clerical training were appointed to defend the actions. For centuries in England legal knowledge was the monopoly of priests. In India it has an ancient origin. Originally persons who are well versed in law plead for others as their private agents without any fees. It was considered dishonourable to charge fees for sending the legal advice and defending cases.

Legal profession unlike other professions is honourable and prestigious. The advocates are addressed with a prefix 'Learned', because it is intended for service to the people in protecting their personal liberty and right to property. It is honourable because it is not a business; but only a service. The greatness, dignity and honour of the legal profession lies in the Code of its ethics governing the relations of lawyers between themselves and with others in their professional matters and dealings. The failure to observe the ru'es of advocacy will degenerate it into a trade or a means for accumulation of wealth. It is not a vocation for private gain.

It has long been the axiom of the legal profession that any form of self advertisement by a practising member of the Bar is contrary to etiquette. It is regarded as unprofessional for an advocate to advertise oneself directly or indirectly. Such a course of action tends to lower the dignity of this honourable profession and is akin to touting. The Advocate should not seek clients, but this duty is to give legal assistance to those who seek assistance. Solicitation of work in any form is taboo. In fact it is prohibited in foreign countries for it is considered undignified and a professional misconduct.

Solicitation which is unprofessional may take numerous forms. It is said "there can be many ways which an Advocate, intending to advertise himself, may adopt and yet try to conceal the fact that he is so advertising. "The issuing of circular letters or election manifestos by a lawyer with his name and address printed therein, appealing to the members of his profession practising in the lower court, who are of course in a position to recommend to the counsel practising in the High Court, is obviously an indirect way of advertisement". An Advocate sending a circular post card with the name, address and description himself would amount to an advertisement on his part therefore of it is an improper conduct. A person canvassing for votes is deemed touting in the State. The sending of clerks and deputing agents to various districts by an advocate necessarily mean approaching directly the Advocates practising in the Subordinate Court. This would undoubtedly be advertising in an indirect manner and is certainly reprehensible. Another cheap way of advertisement is writing articles and giving opinions for publication in news papers, when the writer describes himself as an Advocate practising in a particular court. They are ill motivated because such discussions on controversal topics relating to legal profession, pertaining to law, Court or the Bar Council thro' media are really intended to bring the lawyer himself to the notice of other lawyers and litigant in the mofussil in the hope of attracting work. All such practices must be condemned as they amount to flagrant breach of professional etiquette. They are in fact really intended for getting unfair advantage over other members of the Bar and will amount to professional misconduct liable to be proceeded against by the Bar Council.

In England a barrister is entitled to personal advertisement as it is necessary for the proper exercise of his profession; but it would be unprofessional to do or allow to be done with the primary motive of advertisement. A practising barrister may not appear robed on television oV on film, but there is no objection in exhibiting his portrait in robes in a particular place. An advocate should not permit his name to appear in trade directories or International Law lists published by authorities. He should not permit himself to be described in news paper articles as practising in a particular division of the High Court (Halsbury Laws in England page 1196, Vol.III).

A barrister announcing himself in a newspaper that he is open to consultation between certain hours, giving interviews or supplying information to the press concerning his life, practice, achievements, earning, contributions to fund, organisation, society, etc. are professional misconduct to be condemned. Publishing his photograph as a member of the bar in the press or any periodical will be treated as advertisement and unprofessional action.

A practising barrister may broadcast lectures on law or on quasi judicial subjects only with the prior consent of the Bar Council. He cannot take part in a film on a legal or quasi legal subject without prior sanction of the Bar Council, but in the case of non-legal subject, he may do so under his own name without disclosing his position as barrister practising in courts. It is contrary to professional etiquette for a barrister to answer legal questions in news papers and periodicals disclosing his name and status either directing or indirectly for publicity.

A member of the Bar should not write articles with regard to pending cases nor in cases where the time for appeal has not expired. He should not give an interview to a press representative on any matter in which he has been, or is engaged as a counsel. He should not furnish signed legal photographs for publication. Above all he should not blow his own trumpet and talk on his forensic ability.

All these are taboo for an Indian lawyer as well; but they are invariably overlooked and this profession is now carried on for amassing wealth and fame. The advocates are now forgetting the fact that they are not tradesmen, but only public servants and officers of the Court to help the court in coming to the right conclusions both on questions of law and facts. They are the "guardians of three greatest gifts of modern civilization viz., order, justice and liberty". They stand for legal order which is one of the noblest functions in the society.

But in recent times, the professional people are forgetting all these and concentrating on self, power and fame. This is an unhealthy trend; if this trend is encouraged nobility of this profession will be lost in the course of time and it may also lead to mutual jealousies and competition among the lawyers.

A professional lawyer must always remember the words of Lord Macmillan that "no other profession touches human life at so many points. The legal profession, by its ethics, is a carrier of service to the community and not a trade". Men of bad character and antecedence cannot but disgrace the profession even if their bad conduct does not extend to the professional sphase. Young B. Smith, Dean of Columbia University School of Law, once said "If you would materially improve the ethical standard of the profession, law study must be so reorganised as to arose in the future members of the Bar because, I think that the present members are beyond redemption - a higher idealism and a greater sense of public responsibility. This can best be done by placing a greater emphasis upon the social implications of legal rules and legal practices, thereby revealing to the students the true functions of law and of the lawyer'.

Concurrent and Consecutive Sentence

(By S.A. Karim, Advocate, Triruvananthapuram)

In a calender case No. 288 of 1993, under Ss.457 and 380 read with 34 Indian Penal Code, the learned First Class Judicial Magistrate of Neyyattinkara, a southern most Court of Kerala, convicted the accused under both the sections and sentenced to undergo rigorous imprisonment for two years each and sentenced to pay fine of Rs.500/- each. In default of fine, simple imprisonment for a period of six months more. The sentence shall run consecutively. The accused went in appeal, but the learned First Additional Sessions Judge, Thiruvananthapuram dismissed the appeal outright. So, the conviction and sentence stand confirmed. It means the convicted shall undergo prison for two years under S.457 first and then shall undergo prison for another two years under S.380 and lastly he shall further undergo prison for six months in default of fine. In the instant case, the convicted shall undergo four and a half years prison continuously. This is the effect of consecutive sentence of imprisonment. There are similar instances. If the sentences were concurrent, the convicted would have completed the prison term in two years. Therefore, one desires to know whether law permits consecutive sentence.

The Indian Penal Code, 1860, is the major penal law of our country. Every penal provision prescribes punishment. It may be either death, imprisonment for life, imprisonment for a term, or fine or both. There are several minor Criminal Acts and even the Criminal Procedure Code, 1973. No law stated when the prison sentence starts. If time is not stated, sentence take place immediately on pronouncement. This is the trend of the penal law.

S.389, Criminal Procedure Code, speaks about suspension of sentence pending the appeal and release of appellant on bail. It clarifies the trend. It reads-

(1) pending any appeal by a convicted person, the Appellant Court may, for reasons to be recorded by it in writing, order that the executions of the sentence or order appealed against be suspend and, also, if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on a Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present appeal, the Court shall –

(i) where such person being on bail is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is bailable one, and he is on bail,

order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain orders of the Appellate Court, under S.(1); and the sentence of imprisonment shall, so long as he is released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

S.389, Criminal Procedure Code, clearly indicated the prison sentence shall not take place in case of suspension of sentence either by the convicting Court or Appellate or Revisional Courts. The suspension period shall not affect the sentence, if the sentence remains unaltered. In every other case prison sentence starts immediate. If the Parliament and State Legislature intended to give holiday to any prison sentence, it would have stated so. Therefore, in a case of more than one offence in a transaction, if convicted and sentenced to prison, the sentence shall run concurrent and immediate. So, in my humble view consecutive prison sentence is unknown to Criminal Law of our country and therefore it is illegal.

Enlargement of Fundamental Rights?

(By Justice K.P. Radhakrishna Menon)

Constitution is the fundamental law of a country. It represents the political, economic, cultural and moral aspirations of the people. Political pundits therefore say that the Constitution shall highlight and give emphasis to systems, suitable to the genius of the people.

Based on this Constitutional theory, Mahatma Gandhi remarked: "By political independence I do not mean an imitation of the British House of Common, or the Soviet Rule of Russia, or the Facist Rule of Italy, or the Nazy Rule of Germany. They have systems suited to their genius. We must have ours suited to our systems". To Mahatmaji "the true source of rights is duty", and that "every Community shall be on a par with every other under the Swaraj Constitution." Maharshi Aurobindo was of the view that democracy to be successful in India shall be rooted in dharma i.e., duties, the forerunner of rights. In India, dharma is the main factor that shaped the character of an Indian. The development of a complete personality one can have, only if he is committed to the national ideals like "sacrifice and service' and 'civic duties' which undoubtedly form part of 'dharma'. Rights and duties thus are the two sides of the same coin. Malraux, a member of the De Gaulle Cabinet has obviously understood this cultural background of this nation, and that is why he told Pandit Nehru that "when India is free let the great Shankara guide India". Arnold Toynbee and Sir Julian Huxley have also expressed the same view.

Alas: we ignored these Gandhian ideas, our heritage which takes in its fold human values and human rights, Aurobindo's declaration and the views expressed by the political leaders of the west, and made a Constitution borrowing western political theories not suited to our

genius. As Swami Vivekananda said " in Europe, political ideas form the national unity" whereas "in Asia, religious ideas form the national unity". Swamiji accordingly said that "the unity in religion, therefore, is absolutely necessary as the first condition of the future of India". The western political theories ingrained in our Constitution gave a disastrous blow to the endouring principles referable to Gandhian ideals, namely, "Compassion of the strong towards the weak, and the suppression of immediate gratification for the more rewarding goals of the national glory and progress". (Vide Nani Palkhivala - Selected Writings) - while enacting Part III (Fundamental Rights), the framers of the Constitution failed to take into account the fundamental democratic principles suitable to Indian conditions, enunciated by the Mahatma, namely "the true source of rights is duty" and that "every community would be on a par with every other community". Consequently no enforceable duties corresponding to the fundamental rights, have been cast on the citizens. At this juncture I would like to make it clear Art.51A, (added by the Forty second Amendment in 1976), enumerating certain fundamental duties addressed to the citizens without any legal sanction, which perhaps may create a political Utopia, does not fill the lacuna.

Art.14 providing equality before law and equal protection of the law is a camouflage, when we consider its scope with reference to Arts.15(4) (added by the 1st amendment to over ride the judgment of the Supreme Court in 'Chambakam 'declaring that communal G.O. enabling the Government to reserve seats to backward classes on the basis of castes in educational institution) and Art.16(4) conferring additional fundamental rights on certain classes of the citizens and Art.28 and Art.30 conferring special fundamental rights on the minorities as defined therein. The cumulative effect of these provisions is the restoration of the notorious 'Divide and Rule' policy of the British Government. Not only that, these provisions cut at the very root of the national ideology of 'unity in diversity' and 'secularism'.

After writing guarantees of religious freedom into the Constitution there was no need to divide the people into religious minorities and religious majorities, by incorporating Arts.28 and 30. The makers of the Constitution should have taken into account the meaningful views of the framers of the American Constitution, regarding the desirability of the granting of special fundamental rights to the minorities, especially when they had borrowed very many political ideas from the American Constitution also. The views of the makers of the American Constitution is succinctly stated by Frankfurter, J. thus: "And so Jefferson and others who followed him wrote guarantees of religious freedom into our Constitution. Religious minority and religious majority were to be equal in the eyes of the political State (This is the view Gandhiji expressed). But Jefferson and others knew that minorities might disrupt the society. It never would have occurred to them to write into the Constitution the subordination of the general civil authority of the State to sectarian scruples". The Judge added! "that which to the majority may seem essential for the welfare of the State offend the conscience of the majority. But so long as no inroads are made upon the actual exercise of religion by minority, to deny the political power of the majority to enact laws concerned with the civil matters simply because they may offend the conscience of a minority really means that the consciences of a minority are more sacred and more enshrined in the Constitution than the conscience of the majority." These special and additional fundamental rights have retarded our attempts to sustain secularism in this country. They have completely disrupted the society which, prior to the Constitution had existed in peace and in harmony. Former Chief Justice of India, Justice K. Subba Rao has expressed his strong view on secularism. He says "Secularism" has come to mean atheism, instead of spiritual renaissance. Instead of religion deluging the lena diwht spritual ideas and unifying the nation and strengthening the moral fibers, it has helped to divide the country."

The reservation policy based on the fundamental rights envisaged under Arts.15(4) and 16(4) has exploded the salient objectives sought to be achieved by Art.46, namely to bring the weaker section of the people generally and the members of the Scheduled Castes and Scheduled Tribes into the main stream.

Undue recognition of the fundamental rights without any corresponding duties towards the society and the nation has resulted in an unimaginable growth of sectarianism, bigotry, indiscipline, license to do anything one likes to do and fanaticism, born enemies of democracy. Politicians took advantage of the situation and started be fooling the people. Caste and religion are being used by them as the ball in the political game of ping-pong. Policy of appeasement adopted by the administration to satisfy the demands of special groups, many a time have disabled the Government to enact laws concerning civil matters. Disobedience to enforceable law has become the order of the day. 'Unity in diversity' got metamorphised into 'diversity in Unity'. Maintenance of standards of decency dictated by a high moral sense has become impossible, Freedom has degenerated into license. There is no field of activity which is free from the misdeeds of such licensees. This situation is highlighted by the renowned jurist Palkhivala thus: "undisciplined trade unionism is as dangerous as undisciplined capitalism and undisciplined demagogy is as dangerous as undisciplined student power........It is a painful truth that in labour relations what is claimed by certain unions is not freedom but licence. When freedom degenerates into licence, people resort even to means prohibited by law in their endeavour to secure coveted objectives. In the year 1979, 43 million man days were lost in India on account of strikes and 43 million man day's lost to society's detriment, resulting in a fall in the gross national product and an increase in the inflation. The workers themselves have nothing to gain in the long run, by such irresponsible leadership". All on account of fundamental rights without corresponding duties.

Consequently supremacy of law has degenerated into anarchy, as lawlessmen spread all over the country are marauding unmolested. Rule of law concept has become famous in "myth and legend". Corruption is rampant. Accountability is nil. Criminals punished are entitled to the protection of fundamental rights, particularly the fundamental rights under Art.21. Law abiding citizens are few and far. Politics has become the asylum for many a criminal resulting in criminalisation of politics and politicisation of criminals. "To live with human dignity" enshrined in Art.21 cannot even be dreamt of by a very large section of the populace as they are living in penury. A welfare State alone can help the poor to enjoy the Right to live with human dignity, the Right to live in a clean and hygienic environment and to have free education.

History of independent India shows that Arts.15(4), 16(4), 28 and 30 have helped the politicians to re-establish the British theory of 'divide and rule' for the aggrandisement of themselves and their kith and kin. Even after 50 years of independence, we were not able to establish the welfare State envisaged under the Constitution. Until India becomes a welfare State in the true and literal sense of the word, the fundamental rights will remain a mirage to the poor. If you offer to a poor starving Indian (nearly 40% of the Indians belong to this category) a copy of Part III of the Constitution (after explaining to him the advantages of the various fundamental rights incorporated therein) and a morsel of food simultaneously, it goes without saying that he will grasp the food and not Part III, because Part III to him is not a life saver.

The fundamental rights have created a belief in the citizens who are rich and who wield power governmental or otherwise that they are superior to the nation. They therefore are fighting for their fundamental rights even at the cost of the progress of the nation. The damage done to the body politic on account of this, incalculable and unimaginable.

Under the circumstances I am of opinion that the National Law Commission shall first take steps to repair the damage done to the body politic by Part III. To accomplish this we shall have to amend the Constitution and add provisions in Part III, which are consistent with the genius of the country, as suggested by Mahatmaji. Enlargement of fundamental rights shall be put off until the nation becomes a welfare State in the legal and literal sense. It is all the more so because the amendments suggested are based on borrowed western theories not suited to our genius.

Jai Hind.

Cheque Dishonour Notice

(By S.A. Karim, Advocate, Thiruvananthapuram)

Ss.138 to 142 of the Negotiable Instruments Act, 1881, speaks about dishonour of certain cheques for insufficiency of funds in the accounts. Ss.138(a) says a cheque is valid for six months from the date of the cheque. The sub-section is silent about the number of presentation to the Bank. Sub-s.138(a) reads-

"the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier".

As per the Division Bench decision of the Hon'ble Supreme Court reported in 1998 (2) KLT (SC), P. 765 a cheque can be presented any number of times during its validity. The reasoning of the decision is this.

"Incourse of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after some time, on his own volition or at the request of the drawer, in expectation that it would be encashed. Needless to say, the primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which normally is taken out of compulsion and choice."

Sub-s.(b) of the S.138 reads-

"the payee or the holder in due course, as the case may be, makes a demand for the payment of the said amount of money by giving notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid."

This sub-section demands a statutory notice within 15 days, but it is silent about the number of notice. In the Supreme Court decision cited, the cause of action arises when the first notice is issued. There is no subsequent cause of action . Sub-section (b) of S.142 reads-

"Such complaint is made within one month of the date on which the cause of action arises under Cl.(a) of the proviso to S.138".

This sub-section also does not speak about the number of cause of action. The decision of the Apex Court is the law of the Country under Art.141 of our Constitution.

The sub-s.(a) of S.138 never limits the presentation of a cheque to the Bank. The Supreme Court decision cited allows the payee or the holder in due course to present a cheque any number of times within its validity period. Likewise, the payee or the holder in due course, has to be permitted to issue notice any number of times within the validity period of the cheque. In my humble view the reasoning stated for presenting the cheque more than once squirely applicable to the statutory notice on a dishonoured cheque.