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Judgment
K. Sreedhar Rao, J.—The petitioners have been convicted for the offence u/s 138 of N.I. Act for dishonour of the cheque issued by them for a sum of Rs. 1,62,600.98 ps. The Trial Court has convicted them. The District Court in appeal has confirmed the conviction and fine of Rs. 1,82,600.98 ps imposed by the Trial Court and in default to pay the fine amount, to undergo simple imprisonment for a period of six months. It is the case of the petitioners that the notice issued by way of telegram does not confer to the requirements of law relating to issue of notice as contemplated u/s 138B. In this regard, they have relied upon the decision of the Madras High Court in the case of M. Murugan Vs. Queen Jhansi Vetrikodi, wherein at paras 7, 8 and 9, the following observations are made:-
Two questions arise in this matter.
whether a telegram can be equated to a FAX message?
Whether the telegram had been confirmed by a registered post?
As far as the first point is concerned, no doubt, the contents of the telegram may contain all particulars. But the fact remains that the respondent has not received any intimation duly signed by the complainant. On the other hand, it contains a script of what the complainant has at his end sent to the postal department and the postal department in turn sent the message to the receiving end by Morse Code and the receiver there converts this Code into words and sends it to the respective addressee. Whereas a FAX message when faxed, the other end, namely, the addressee receives it verbatim of the message including the facsimile of the signatures and the corrections if any. Therefore, in such circumstances, it is more authenticated than a telegram. Say for example as what happened in this case. As message has been given by the complainant to the accused via telegram. The postal authority had sent the Morse Code. At the receiving end or proposed person who sent the message to the receiving end has apparently made a mistake by typing the address of the complainant as M. Murugan, 2. B. Muthuramalinga Thevar St. Valaithoppu Madurai but the telegram has been sent by Murugan 28 Muthuramalinga Thevar St. Villapuram, Madurai. But at the receiving end, the original of the telegram received by the accused reads as if it has been sent by Murugan. 2-B Muthuramalingam Thevar Street, Villapuram Madurai. Therefore, the residential address of the sender appears to be different. Hence, the learned counsel for the respondent would submit a telegram can never be equated to a FAX message, since in a FAX message, such mistakes would not appear. Moreover, what has happened in this case that is the accused had sent a reply dated 9.11.2001 to the address mentioned in the telegram denying knowledge about the existence of such a person and that she has not had any contract or any dealing with the complainant. The letter apparently has been returned stating that there is no such addressee in the address mentioned in the telegram namely, Murugan. 2-B. Muthuramalinga Thevar, Villapuram, Madurai. Therefore, it is clearly seen that there is every room for the details to differ in the contents of the telegram between the sending place and the reaching point. Consequently, it may not be equated to a fax message.
As a matter of fact, there is yet another decision of this Court reported in Swastik Projects Private Ltd. and Another Vs. Snehakana Chatterjee, wherein it has been stated that a telegram cannot be accepted as a statutory notice, as it is only an unsigned or anonymous communication. In this context, a decision of the Supreme Court, though not under this Act but under Prevention Detention Laws is District Magistrate and Another Vs. G. Jothisankar is relevant, wherein their Lordships have held that a telegram by itself is not an authenticated document, unless it is confirmed by a subsequent signed application. Therefore, in the present case, when the telegram has not been followed with any other letter or any other communication, it does not have the sanctity of a statutory notice, contemplated under the Negotiable Instruments Act and the decision cited by the petitioner referred earlier by me may not apply to the facts and circumstances of the case since the fax message was followed by a registered post and the fax has been duly authenticated. Therefore, in such circumstances, I have absolutely no hesitation to hold that there is no statutory notice as contemplated under the Negotiable Instruments Act.
The Supreme court in the case of M/s. Sil Import, USA Vs. M/s. Exim Aides Silk Exporters, Bangalore, in para 14 to 17 has made the following observations:-
Facsimile (of Fax) is a way of sending handwritten or printed or typed materials as well as pictures by wire or radio. In the West such mode of transmission came to wide use even way back in the late 1930s. By 1954, International News Service began to use Facsimile quite extensively. Technological advancement like facsimile, internet, E-mail, etc., were on a swift progress even before the Bill for the Amendment Act was discussed by the Parliament So when Parliament contemplated notice in writing to be given we cannot overlook the fact that Parliament was aware of modern devices and equipment already in vogue.
Francis Bennion in "statutory Interpretation" has stressed the need to interpret a statue by giving "allowances for any relevant changes that has occurred, since the ''Act''s passing, in law, social conditions, technology, the meaning of words, and other matters.
For the need to update legislations, the Courts have the duty to use interpretative process to the fullest extent permissible by the enactment. The following passage at page 167 of the above book has been quoted with approval by a three Judge-Bench of this Court in State through CBI Vs. S.J. Choudhary, at p. 1131):
It is presumed that Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in is application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat is a current law.
So if the notice envisaged in clause (b) of the proviso to Section 138 was transmitted by Fax, it would be compliance with the legal requirement.
In the instant case, issuance of notice of telegram and receipt of telegram is not in dispute. It is the contention that the telegram does not contain the signature of the complainant and it cannot be construed that a notice in writing is untenable, because telegram will be in writing and such a writing not necessarily be in the handwriting of the complainant and with the signature of the complainant. In that view of the matter, revision is dismissed.