.) * IN THE HIGH COURT OF DELHI AT NEW DELHI % tudqment reserved on: lfJh September, 2011 /udqment pronounced on: 21st September, 2011 + CRL.M.C. 1188/2011 SHREE RAJ TRAVELS & TOURS LTD. & ORS. .. ... Petitioners Through: Mr.Sunil Gupta, Sr.Advocate with Mr.jatin Zaveri, Mr.Gaurav Agarwal and Mr.Tanmaya Agarwal, Advocates versus DESTINATION OF THE WORLD (SUBCONTINENT) PRIVATE LTD. .. ... Respondent Through: Mr.Anindya Malhotra, Advocate CORAM: HON.BLE MR. JUSTICE PRADEEP NANDRAJOG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. For orders, see Cri.M.C.No.l056/2011. SEPTEMBER 21, 2011 mm (PRADEEP NANDRAJOG) JUDGE Signing Date:27.08.2024 16:57:17 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 'Yo + (; THE iHi H Oi-=- DU ... /),,T rec:·pr)/(J(l/)[7 Z&17 Senterr;iJer 7011 __ •' - jucfq;ner7t pronounced on: 21st Septen?/:Jer 20.1' 1 C.K{LJ1.C J_Q56/2011 SHREE RAJ TRAVELS G( TOUrtS lTD. 5( OP5 .., ... Petitioners Through: i\1r.Sunii Gupta, Sr.A.dvocate. with Zaveri, Mr.Gaurav Agarwal and Mr.Tanrnaya Agarvv:al, 11:\dvocates DESTINATION OF: THE \1\/0RLD (SUBCONTiNENT) PP.lVA.TE UfD. . .... Respondert Through: Malhotra, Advocate :[HLM.C. SHREE RAJ TRAVELS & TOURS LTD. & ORS. . .... Petitioners Tjl o .I \ .. L.o . r/ii·.sunl 1 upta, Sr.!\dvocate with M 1· .jati n ZaverL r.<:;aurcw Agarvvai and Mr.Tanmaya J\ga rwal/-\dvocates versus DESTIN ON OF THE \NOF\LD PP,I\//\TE L ..... Hespc;ndent Througt:: Malhotra, Advocate 1rnl il\lil C lJI-·,r·L/''01' 1. ,_n .11"!. SHREE R/\j TRJ\\/ELS & TOURS LTD. . .... PetitiC>ners 61 ORS. Through: Gupta, Sr.Advocat:e vvith r.jati n Za'>.rerL M r.Caa urav f.\g 31 rvvall and M r.Ta n maya J\garvval, A,dvocates c:onnect::.·J \=·age :i of / Ve(SL!S DEST!NAT!Ol\1 OF THE \NORLD (SUBCONTINENT) PRIVATE LTD. ,,., Respondent Through: Advocate CP,LJllLC. SHREE F\AJ TRAVELS 6( TOUf\S LTD. 6( ORS. .. ... Petitioners Mr.SunH Gupta, Sr.P1dvocate with Zaveri, Mr.Gaurav and Mr.Tanrnaya Thr-ough: - - A.dvocates versus DESTINATION OF THE PRIVATE LTD. . .... Respondent Through: Mr.Aninr::!ya Malhotra, CRLM.C. 111)/2011. SHREE RAJ TRAVELS & LTD. & ORS. .. ... Petitioners Through: Gupta, Sr.Advocate with Mr,Jatin Zaveri,, Mr.Gaurav Agarwal and Mr.Tannnaya AgarwaL Advocates versus DESTII\LA,TION OF THE \NORLD (SUBCONTiNEf\lT) PRiVATE LTD. .. ... Respondent Through: Mr.Anindya Malhotra, Advocate CRLM.C llJl:J/2011 SHREE I::ZP,j TRAVELS & TOURS LTD. & ORS. .. ... Petitioners Through: Mr.Sunil Gupta, Sr.Advocate with Mr,Jatin Zaveri, f'l,garwal and Mr.Tanmaya Aqarwalr 11:\dvocates Cr!.M.C.I\Io.1056/20:Ll 81 connec:terllTicittc:>rs Page 1 of 2.1 -· !, i 9; versus DESTINATION OF THE V\fOR.LD (SUBCOI\JTH\IENT) PRIVATE LTD. . .... Respondent Through: Mr.P\nindya MlaH1otra, Advocate CRLM.C. SHREE RAJ TRAVELS & TOURS LTD. E)( ORS" ..... Petitioners Mr.SunH Gupta, Sr.Advocate with Mr.jabn Zaveri, Mr.Gaurav Agarwal and Mr.Tanmaya AgarvvaL t3,dvocates ·rhrough: versus DESTII\IAT!ON OF THE \NORLD (SUBCONTiNENT) LTD. . .... Respondent Thr-ougll: Mr.Anindya Malhotra, Advocate CRLM.C SHREE RAJ TRAVELS & TOUHS & ORS. . .... Petitioners Through: Mr.Surnill Gupta, SI-.Advocate with Mt-.jatin Zaveri, !Mr.Gaurav Agarwal and Mr.Tanmaya Aga rwa I, Advocates versus DESTII\LLATiON OF THE \1\/0RLD LTD" ..... Respondent Through: Mr.Anindya Malhotra, CRLM.C. SHREE TRAVELS & TOUR.:S LTD. 61 ORS. . .... Petitioners Mr.Sunil Gupta, Sr.Ad\Jocate with Mr.jlatirn Zaveri, Mr.Gaurav Agarwal and Mr.Tanmaya Through. Cri.IVI.C.No.1056/2011 8t conne::::ted matters Page 3 of 27 ! --·,-! Advocates versus DESTrNATION OF THE WORL[l (SUBCONTINENT) PRiVATE LTD. . .... Respondent Through: Mr.Aninolya Advocate CRLM.C. 11"19/2011 SHREE RAJ TRAVELS 5( TOUR.S LTD. & ORS. . .... Petitioners Mr.Sunll Gupta, Sr.Advocate with M 1-.Jati n Zaveri, M r.(;a urav . Agarwal and Mr.Tanmaya Agarwal, Advocates Through: versus OF THE V\/OF< (SUBCONTINENT) PRIVATE LTD. .. ... Respondent Through: Mr.Anindya Malhotra, Advocate CRLM.C JJUU./2011 SHREE RAj TRAVELS & LTD. & ORS. . .... Petitioners Through: Mr.Sunil Gupta, Sr.Advocate with Mr :jatin Zaveri, Mr.Gaurav Agarwal and Mr.Tanrnaya Agarwal, Advocates versus DESTiNATION OF THE WORLD (SUBCONTINENT) PRiVJlTE LTD. .. ... Respondent Through: Mr.Anindya Malhotra, Advocate CRLM.C. 11BJ12011 SHHEE RAJ TP,A\IELS f)( TOUF\5 LTD. 0( ORS. .. ... Petitioners Through: Mr.Sunil Gupta, Sr.Advocate with Mr.J[atin Za\/eri, Mr.(iaurav Cri.M.C.I\Io.1056/2.011 & connected matters Page 4 of 27 i ---,! /\garw;3JI and Mr.Tanmava · ' J Agarwa:!, versus OF THE \NOR, (SUBC:ONTINEI\lT)PRIVATE LTD. .. ... Respondent Through: Mr.A.nindya Malhotra, ,t,dvocate · CRLM.C. 11B6l?Oll SHREE P,16J TP\1-\\/ELS &, TOUP.5 LTD. 5c ORS. .. ... Petitioners Gupta, Sr.Adivocate with Mrjatin Zaveri, Mr.Gaurav Agarwal and Mr.Tanrnaya AgarwaL J\dvocates Through: versus DESTINATION OF THE \NORl.D (SUBCONTINENT) PRIVATE LTD. .. ... Respondent Through: Mr./J111indya Malhotra, Advocate CRLM.C 11El7/701JL SHREE RAJ & TOURS LTD. 5c ORS. . .... Petitioners Through: Mr.SunH Gupta, Sr.f\,,dvocate with Zaveri, Mr.Gaurav and Mr.Tanrnaya J-\g a rwa i, versus DESTIN.A.TION OF THE \NORLD (SUBC:ONTH\!ENT)PRIVATE LTD. . .... Respondent Through: Mr.Anijndya Malhotra, .Advocate CRLM.C 1188/2011 C:: l··11 R\. tc E P 0. : Tr.:t A\ I c l ·c: ,\, TO i 1 c:; : .._r u 11L- .. ........ I,JI! .. -· -· & OR (' 0'otihonel--s ' \J' . . . . . II ,_ k -::. Through: Mr.Surnil Gupta, Sr.Advocate Cri.M.C.No.1056/2011 81. connectecl rnatte1-s Page 5i of 7.7 t I with Mr.Jatin Mr.Gaurav Agarvval and Mr.Tanmaya i-\garvva1, Advocates versus DESTIN/\TION OF THE \/VORLD (SUBCOf\lTlNENT) PR!V/J1TE D. . .... R.espondent Through: Mr.ij,ninolya Malhotra, Advocate CORAIM: HONDBLE MR. JUSTICE PHA[\l[EP NAINDRP'JOG L VVhether the Repol-ters of papers may be alknved to see the judgm.ent? 2. To be ,-efe!Teo1 to R.eportel- or non 3. Whetller tile judgment slloul·d be reported in the Digest? · PRADEEP NAINDR.AIOG, j, 1. Briefly stated the facts leading1 to filing of the above captioned petitions are that respondent i.e. 'Destination of World (Subcontinent) Pv1=. Ltd.' a cornpany registered under the Companies Act filed 15 comp1la1ints under Section 138 of tile Negotiable instruments ,4ct, 1881 (hereinafter referred to as the 'Nl 1L\ct'); 3 cheques bei119 the subject matter of each complaint. Petitioner No.1 i..e. 'Shree Raj Travels & Tours Ltd.' a company registered under the Companies Act was impleaded as accused No.1 and petitioners 2 to 7 were impleaded as co-accused on the alleQJation that as Di!rectors they were inc:har-ge of the day to dlav affairs of the company and llence were vicariously liable For the defaults of the company. The cornplaint vvas filed the Court of Additional Chief Metropolijtan (hereinafter referred to as the [S,_ connF>cted matters Page tS of 27 'ACMM') New Delhi, inter-,_alia, ,;:r,rerring that the respondent COiilpany and the accused No.1 connpany had entered intc 2 agreements in terms vvhereof H1e accused No.1 compa:1y had issued 45 cheques drawn on State Bank of . Mumbai Branch, in favour of the respondent company, which cheques when presented for encashment by the respondent company with its Banker Bank New Delhi, were dishonoured and upon the cheques being returned the respondent company is::: .. ued notices contemplated under proviso (b) to Section 138 Nl f-l1ct from Delhi to the accused No.1 company which failed to make payment in respect of the sum for which the cheques vvere drawn within 15 days of the receipt of the said notices. VVith respect to the jurisdiction of the Courts at Delhi i;t 1Nas pleaded that for the reason the respondent company had presented the cheques in question collection with banker Bank situated in Delhi, the Court had tile necessary jurisdiction. 2. may be noted at the outset at afte·r the complaints were filed, the respondent company filed a suit bearing No.SS0/2010 in which petitioner No.1 was as the defendant before the High Court of Bombay prayiing for a decree to be passed in the sum for which the 45 cheques forming the subject--matter of the aforesaid complaints were issued. the plaint, jurisdiction of the Courts at IV!umbai was pleaded on the averment that the agreement pursuant whereto the cheques were issued was executed at IViumbai as also that the cheques in question were drawn and issued at Mumbai. 8, connected matte1·s Page 1 of ZJ 3. Taking cognizance of the complaints, the learned ACMM sumrnonecl the petitioners to face trial for an offence punishable under Section 138 of the 1\LL Act. 4. Upon service of the summons, the peUtioners filed application(s) under Section 177 C:r.P.C. inter-aiia stating that the courts at Delhi have no jurisdicbon to take cognizance of the complaints and prayed that tt-:e complaints be 1-eturned to the respondent to be filed in the court of competent jurisdiction. Together with the sa(d application(s), petitionel-s 2 to 7 filed appiication(s) seeking exemption for personal appearance before the Dismissing the application(s) ::;eeking exernption from personal . appearance and keeping pending, for consideration,· application(s) filed under Section 177 CrY.C. vide order elated 25.05.2010 the learned ACMM issued bailable warrants against petitioners 2 to 7. 5. Aggrieved by the order dated 25.05.2010, petitioners 2 to 7 filed petition(s) under Section 482 Cr.P.C. before this Court, which petitions were dismissed vide order dated 23.09.2010. thereto, pehtioners filed petitions seeking Special Leave to before the Supreme Court which were disposed of vide ot-cler dated 14.1.2011 with a direction to the learned /1,CMM tl1at applications filed unde:- Section 177 Cr.P,C. would be disposed of within 2 weeks. 6. Vide order dated 14.02.2011 the learned ACMI\f! dismissed tr1e application(s) under· Section 177 Cr.P.C. filec' by the petitioners on the ground that in view of the dictum of law iaid down by the Supreme Cour-t in the decision Cri.M.C.No 1056/2011 & connected matte1·c: Page ti of 2i . reported as (2004) 7 SCC 338 / 1!da!at Prasad 11 Roop La/ linda! once the r .. iagistrate has taken cognizance of a complaint he has no power to return the same to the complainant with a direction tf1at the same be filed in ::1 court of competent jurisdiction. 7. Aggrieved by the order dated 14.02.2011 passed b'r the !earned ACIVIM, the petitionE:rs have filed t!1e above- captioned petition(s) under Section 4B2 Cr.P.C. requirinn this Court to hold that courts at have no jurisdiction to take cognizance of the complairrts in question and seek directions to the learned ACMM to return the same for filing before the Court of Competent 8. It is t!1e case of the petitioners that the cheques in question were dravvn at Murnbai. The drawee bank is Mumbai, notice issued by the to the petitione,.· company was received at Murnbai and tlltUS merely the respondent posted the notice From and deposited the cheque with its bank at Delhi would not confe( jurisdiction on Courts in Delhi. 9. The issue l1as to !Je debated :Nitll reference to Section 138 of the P,ct and the applicable provisions of the of Criminal Procedure i.e. Sections 177, 178 ancl 179 of Code of Criminal Procedure. 10. the decision reported as 1999 (7) sec 510 KBhaskaran lis. Sha·nl;an::7J..? __ lla_lQjf7Van Balan the Supreme Court has opined, after Sections 178 to Section 179 of the Code of Procedure, that ar: Cri.M.C.l\Jo.1056/2011 & cotlnect:::d matters ?age 9 of2? -·-.! offence may be completed in different localities and thu::; can be trieci in any Court· hcn,r1ng over .said localities. To put it pithily, iin relation to territorial jurisdiction, qua an offence, Ia\!\/ :·ecognizes more than 1 court having1 territorial jurisdiction rind the issue of territorial ju1·isdiction would have to be decided with reference to whether a part of an offence 'INas committed within the territorial jur-isdiction of a court. The issue is no longer· res' integra and r just neeci to note the decision of the Supreme Court in. KBhaskararls case (supra) and highlight that the;· aforesaid is to be culled out from paras 11 and 1:Z of the said decision. 11. The next logical question '\Mould be, \Nhat are the contours of Section 138 of the 1\11 i\ct pertaining to acts to be performed in relation to an offence contemplated IJy the' said Section'? It hardly be re-ernphasized that it are acts of COITlmission or ornission which constitute offences, \Nith or. without the requisite nlens rea, depending upon 1Nllether, the offence is an absolute offence or not. 12. Let me thus note Section 13Ei, A.ct which reads as: under:- \!\/here any cheque drawn a person on 2 n account: maintained by !:1im with a banker for payment of any amount of r'noney to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the anwunt of rnoney standing . to the credit of that account is insufficient to honour the cheque or that it c:xceeds the amount arranged to be paid fmrn that account by an , Cri.IVLC.No.1056/2011 1St connected matters Page 10 of 27 .- ' agreernent made with that bank,, such person shall be deemed to have an offence and shall without to any other provisions of this Act, be punished imprisonment for a term whkh may extend to two year, or with fine which rnay extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) The cheque has pl-esented to the bank within a period of six months from the date on which it is drawn or within the period of its va!idityl' whichever is earlier, (b) The payee or the holder- Induce course of the cheque,, as the case may be,, makes a demand for the payment of the said amount of money by giving c!l notice, in writing, to the drawer, of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and (c) The drawer of such cheque fails to make the payment of tile said amount: of money 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 the said notice. · Explanation: For the purpose of this section, "debt or other liabiHty" means a lega!iy . enforceable debt Of" other l b' 13. In Bhaskaran's case (supra) the Supreme Court had an occasion to deal with the issue of jurisdiction in relation to Section 138 of the Ni and of necessity, the discussion required the Supreme Court to iden,bfy the various acts of commission and ornfssion which constituted the offence punishable under Section 138 of the J.\ct and suffice would It be to highiigllt tilat in para 14 of the Cri.IVJ.C.No.1056/2.011 8z connected mattet·s Page 11 of21 t deci'sion, the Supreme Court hi9hiighted that there are 5 acts which are the components of the offence punishable under Section 138 of the Nl Act and i re-produce the same from para 14 of the decision of the Supreme (Court They read as under:- (i) drawinq of the cheque, (ii) presentation ofthe cheque to the bailk, (iii) returning the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (v) failure of to make payment within 15 days. of the receipt of the notice. 14. After holding that 5 acts wouid constitute the components of an offence under 138 of the Act, in paras 15 and 16 the Supreme Court observed as under:- l/15. It is not necessary that a II the above five acts should have been perpetrated at the same locality. it is possible that each of those five acts could be done at five locaHties. But a concatenation of all the above five is a sine qua non for the compietion of the offence under Section 138 of tile Code. .In this context a reference to Section 178( d) of the Coole is usefuL . it is extracted below: 16. Tl1u:; it is clear, if the five acts were done in five different localities .any one of the courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other . words, the cornplainant can choose any one of Cri.M.C.No.1056/201l & connected matters Page l2 of 27 ·-.!, / ! ·-.! those courts having jurisdiction over any one of the local within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle ·exercise to raise jurisdictional question t-ega1 ding the offence under Section 138 of Act." (En7phasls Supplied) l 15. On the issue of service of notice required to be given by the complainant to the tile Supreme Court observed as under:- "17. The more important point to be deddled in this case is whether the cause of action bas ar·isen at all as the nobce sent by the complainant to the accusec! \Nas returned as '/unclaimed". The conditions pertaining to the notice to be given to the dravver, have been formulated and incorporated in clauses (b) to {c) of the proviso to Section 138 of the Act. The said clauses are extracted below: 18. On the part of the payee he has to make a demand by "gliving a notice in writing. that was the only requirement to complete the offence on the failure of tile drawer to pay the cheque amount within 15 days from the date of such the of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days {{of the receipt" of the said notice. is, therefore, clear that "giving notice" in the context is not the same as receipt of notice. Giving is a process of \1\ihicll receipt is the accomplishment. It is for tile payee to perform the former process by send1inr] e notice to the dravver- at tile correct address Cr!.fV1.CNo.1056/201l S:( connectsd matte:s Page 13 of 2.7 ---,-! 20. If a strict interpretabon is given that the drawer should have received the notice for the period of 15 days to start running n.o. matter that the payee sent the notice on the correct address, a trickster cJ1eque drawer would get thE: premium to avoid n:x:ehdng the nobce by different strategies and he could escape from the legal consequences of Section 138 of the ,Act. it must be borne iri mind that e court not adopt an interpretation which helps a dishonest evader and clips an honest payee as that wouid defeat the very legislative rmeasure. 21. .... The context envisaged in Section 138 of the Act invites a liberal inter·pretation for the person who has the statutory obligation to give notice because he is presurned to be the loser in the transaction and it is for his interest the very pmvision is made by the ie9islature. The words in cia use (b) of the proviso to Section 138 of the Act sllow that the· payee has the statutory to "make a deiT1ancl" by rgiving notice. The thrust 1n the clause is on the need to "make a demand". is only the mode for making such demand which the legislature has prescribed .. 4 payee can send the notice for doing his part for giving the notice Once it is despatched his part is over and the next deoends on what the sendee I . does. 22. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him (vide h'archaran Singh v. 517/vranP and jagdish Sing/7 \<'. 1\!atthu Singh3). 23. 1che notice is returnred as undai11H::d and not as refL:secL V\fili any sigrdficant difference betvveen the tvvo so far as the presur11ption of service is concerned? !n this Cr!.IV!.C.No.1056/201115t connec!:ecl matters Page :14 of 21 -- 'j, connection a refel-ence to Section 27 of the General Clauses i'\ct will be usefuL The section reads thus: 24. No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the pd.nclple incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by rpost vvith the correct address written on it. Then· it can be deemed to have been served on the sendee unless he proves that it was not reaHy served and that he was not r·esponsible for such non-service. other inter-pretation can leacl to a very tenuous position as the di-avver of the cheque vvho is liable to pay the amount wouk:l ·resort to the strategy of subter-fuge by successfuHy avoiding the notice. 25. Thus, vvhen a notice is returned by the sendee as unclaimed date wou!d be the commencing date in reckoning the period of 15 days co-ntemplated in clause (c) to the proviso of Section 138 of the Act. Of course such reckoning would be without prejudice tD the right of the drawer of the cheque to show that he had no knowledge that the notice vvas brought to his address. In the present case the accused not even attempt to discharge tl·ie burden to rebut the afol-esaid presumption." (Etnphasis Supplied) 16. The expr·essions: /pre.s-entaticm of the cheque to the Bank/ a.nd 'if the five difl:erer1t acts were done in five different localities any one of the courts exercising jurisdiction in one of the five local areas can becorrJe the o/ace of trial i'or the oir..Fence under Section 138 ol the Act' to . . be found in 14 and l6 n2spective!y in case (supra) have been understood loy many to mean that Cri.M.CI\Jo.1056/2011 1St conrected lllc'tLe•s ?age 15 of 27 ! J the Court within local limits of which the payee Bank· i.e. thr:= Bank vvhere the complainant cleposited the cheque is situated has the jurisdiction to try the complaint under Section 138 of the 1\H Act, and the unolerstanding appears to be fortified by the observations of the Supreme Court in paras 15 and 16 that if the 5 acts as the ingredient of an offence under Section 138 of the 1\H i\ct were done in 5 different localities, any one of the court exercising jurisdiction in any one of the 5 iocal areas vvould have jurisdiction. 17. But, it is appal-ent that the observatiqns in para 15 and 16 are an obiter as it Is not 5 places where the 5 acts constituting an offence under Section 138 of the Act can possibly be performed The can be performed, as would be explained hereinafter, on1ly at 4 and would immediately state that act No.2 and act No.3 to only. one place i.e. the place wl1ere the drawee bank is 18. Tlle second and the tl1ird act of the 5 listed by the: Supreme Court, as constituting th12 offence under Section 138 of the Nl A.ct are: (a) presentation of the chequre to the bank; and (b) returning the cheque unpaid by the drawee bank. 19. The third act is the return of tile cheque unpaid by the drawee bank anol thus there is no scope for any arrgument as to which bank is contemplated with to the said act. The second act pertains to the act of presentation of. cheque to the bank. i highligr1t t11at the twin words used .are 'the bank. Cri.M.C.No.1056/2011 8t connected matters Page 16 of 17 · --·!, '!, \'l(' tl: p,1 I ,,J '':1 .. li fj 1/ 20. the decision reported as 2001 (3) SCC 609 Shri !shar Allov Steels Ltd Vs. lil.Xaswa!s Neco ltd., a 3 judge Bench of the Supreme Court, having as a member of the Bench the author of the judgment in Bhaskaran's case (supra), dealt with and decided as to vvhat would be meant by 'the bank' as mentioned in S1ection 138 of the Act. \!\/as it the drawee bank or e payee bank? The Supreme Court answered the question in the following words:- "2 . ( a) \/\f hat is rn e a n t . by, ''the b a n k" as mentioned in clause (a) of the proviso to Section 1.38 of the Negotiabl.e !Instruments Act, 1881? (b) Does such bank mean the bank of the drawer of the cheque or tile payee of the cheque? (c) To which bank the cheoue is to