Case Note & Summary
The applicants, partners of M/s. Megapolis Landmar LLP, filed an application under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of the complaint R.C.S. No. 580 of 2017 and consequent FIR No. 37 of 2018 registered at Kamothe Police Station, New Mumbai, for offences under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed by the respondent, Ramesh Kashinath Bhosale, as power of attorney holder of his son Gaurav Ramesh Bhosale and Mrs. Sandhya G. Bhosale, alleging that a cheque issued by the applicants was dishonoured. The applicants contended that the demand notice was not served on them as it was returned with the endorsement 'not claimed', and therefore the essential ingredient of service of notice under Section 138 was not satisfied. The court heard the matter on 3rd April 2023 and 12th April 2023. The respondent appeared in person and insisted on arguing without a lawyer. The court examined the record and found that the notice was sent by registered post but was returned unserved. The court held that mere issuance of notice is not enough; the notice must be served on the accused for the presumption under Section 138 to arise. Since there was no evidence of service, the complaint and FIR did not disclose the essential ingredients of the offence. The court allowed the application, quashed the complaint and FIR, and discharged the applicants from liability.
Headnote
A) Criminal Law - Cheque Dishonour - Section 138 Negotiable Instruments Act, 1881 - Demand Notice - Service - The court considered whether the complaint and FIR for cheque dishonour should be quashed when the demand notice was sent by registered post but returned with endorsement 'not claimed' and there was no evidence of actual service. Held that for the presumption under Section 138 to arise, the notice must be served on the accused; mere issuance is insufficient. The court quashed the proceedings as the notice was not properly served. (Paras 1-10) B) Criminal Procedure - Quashing of FIR - Section 482 CrPC - Abuse of Process - The court examined the scope of Section 482 CrPC and held that where the complaint does not disclose the essential ingredients of the offence, the proceedings are an abuse of process and liable to be quashed. (Paras 3-10)
Issue of Consideration
Whether the FIR and complaint under Section 138 of the Negotiable Instruments Act, 1881 can be quashed when the demand notice was not properly served on the accused.
Final Decision
The court allowed the application, quashed the complaint R.C.S. No. 580 of 2017 and FIR No. 37 of 2018, and discharged the applicants from liability.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- demand notice
- service of notice
- presumption of receipt
- Section 482 CrPC
- quashing of FIR
