Case Note & Summary
The petitioners, eight individuals including Sahednnisa and others, filed a Criminal Writ Petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of criminal proceedings initiated against them under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed by the respondent, John Paul Antony, alleging dishonour of a cheque. The petitioners contended that the mandatory notice of demand under Section 138 was not sent by registered post, which is a prerequisite for initiating proceedings. The court examined the record and found that the notice was not sent by registered post but was merely acknowledged by the complainant. The court held that the requirement of sending notice by registered post is mandatory and cannot be dispensed with. Consequently, the court quashed the criminal proceedings against the petitioners. The judgment was delivered by Justice P.R. Borkar on February 25, 2010.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Notice of Demand - Mandatory Requirement - The notice of demand under Section 138 of the Negotiable Instruments Act, 1881 must be sent by registered post or by any other mode as prescribed. In the present case, the notice was not sent by registered post but was merely acknowledged by the complainant. Held that the mandatory requirement of sending notice by registered post was not complied with, and therefore, the criminal proceedings are liable to be quashed. (Paras 1-5)
B) Criminal Procedure Code - Quashing of Proceedings - Section 482 - Inherent Powers - The High Court can exercise its inherent powers under Section 482 of the Code of Criminal Procedure, 1973 to quash criminal proceedings if the mandatory requirements of the statute are not fulfilled. Held that the proceedings under Section 138 of the Negotiable Instruments Act, 1881 were quashed as the notice was not sent by registered post. (Paras 1-5)
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the mandatory notice of demand was not sent by registered post but was merely acknowledged by the complainant?
Final Decision
The criminal writ petition is allowed. The criminal proceedings against the petitioners under Section 138 of the Negotiable Instruments Act, 1881 are quashed.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- mandatory notice requirement
- service of notice by registered post
- acknowledgment of receipt
- quashing of criminal proceedings
Case Details
2010 LawText (BOM) (02) 3
Criminal Writ Petition No. 696 of 2009
Rajendra Deshmukh for petitioners, Smt. B.R. Khekale (APP) for Respondent No. 1 State, Respondent No. 2 present in person
Sahednnisa d/o Bakruddin and others
The State of Maharashtra and John Paul Antony
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Nature of Litigation
Criminal writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
Petitioners sought quashing of criminal proceedings initiated against them under Section 138 of the Negotiable Instruments Act, 1881.
Filing Reason
The petitioners challenged the criminal proceedings on the ground that the mandatory notice of demand under Section 138 of the Negotiable Instruments Act, 1881 was not sent by registered post.
Issues
Whether the notice of demand under Section 138 of the Negotiable Instruments Act, 1881 was sent by registered post as required by law?
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be sustained without compliance of mandatory notice requirement?
Submissions/Arguments
Petitioners argued that the notice of demand was not sent by registered post, which is a mandatory requirement under Section 138 of the Negotiable Instruments Act, 1881.
Respondent No. 2 (complainant) was present in person but no specific arguments are recorded in the judgment.
Ratio Decidendi
The requirement of sending notice of demand by registered post under Section 138 of the Negotiable Instruments Act, 1881 is mandatory. Non-compliance with this requirement renders the criminal proceedings unsustainable and liable to be quashed.
Judgment Excerpts
Petitioners challenge the criminal proceedings initiated against them under Section 138 of the Negotiable Instruments Act, 1881.
The notice was not sent by registered post but was merely acknowledged by the complainant.
The mandatory requirement of sending notice by registered post was not complied with.
Hence, the criminal proceedings are liable to be quashed.
Procedural History
The petitioners filed Criminal Writ Petition No. 696 of 2009 before the Bombay High Court, Appellate Side, Bench at Aurangabad, challenging the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881. The court heard the matter and delivered judgment on February 25, 2010.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 482
- Constitution of India: 226
