Case Note & Summary
The petitioner, Shabbir Abdul Rahman Shaikh, was the original accused in a complaint filed by the respondent, Parnerkar Nagari Sahakari Pathsanstha Maryadit, under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of a cheque. The complaint was pending before the Judicial Magistrate, First Class, Ahmednagar. The petitioner filed a Criminal Writ Petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, challenging the order dated 27.11.2009 passed below Exhibit 4, which rejected his application for discharge. The core legal issue was whether the complainant had properly served the statutory demand notice on the accused. The petitioner contended that the notice was not served on him and that the complainant failed to prove service. The respondent argued that the notice was sent by registered post and that there was a presumption of service under Section 27 of the General Clauses Act, 1897. The court analyzed the evidence and found that the complainant had not produced the postal acknowledgment or any other proof of service. The court held that the presumption of service is rebuttable and that the burden was on the complainant to prove service, which was not discharged. Consequently, the court allowed the petition, quashed the criminal proceedings, and set aside the impugned order.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Service of Notice - Section 138, Negotiable Instruments Act, 1881 - The complainant must prove that the demand notice was served on the accused; mere dispatch by registered post is not sufficient if the accused denies receipt and the postal acknowledgment is not proved. Held that the proceedings are liable to be quashed for want of proper service of notice (Paras 4-6).
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the complainant failed to prove service of demand notice on the accused?
Final Decision
The petition is allowed. The impugned order dated 27.11.2009 passed below Exhibit 4 by the Judicial Magistrate, First Class, Ahmednagar, is set aside. The criminal proceedings in the complaint under Section 138 of Negotiable Instruments Act, 1881 are quashed.
Law Points
- Service of notice under Section 138 of Negotiable Instruments Act
- 1881 must be proved by complainant
- Presumption of service under Section 27 of General Clauses Act
- 1897 is rebuttable
- Burden of proof on complainant to show proper service
Case Details
2010 LawText (BOM) (06) 2
Criminal Writ Petition No.1137 of 2009
Mr. S.S. Sayyad for Petitioner, Mr. S.S. Jadhavar for Respondent
Shabbir Abdul Rahman Shaikh
Parnerkar Nagari Sahakari Pathsanstha Maryadit
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Nature of Litigation
Criminal writ petition under Article 227 of Constitution of India read with Section 482 of Code of Criminal Procedure, 1973, challenging order rejecting discharge application in a complaint under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner (original accused) sought quashing of criminal proceedings and setting aside of order dated 27.11.2009 passed below Exhibit 4.
Filing Reason
Petitioner contended that the statutory demand notice under Section 138 of Negotiable Instruments Act was not served on him and the complainant failed to prove service.
Previous Decisions
The Judicial Magistrate, First Class, Ahmednagar, passed order dated 27.11.2009 below Exhibit 4, rejecting the petitioner's application for discharge.
Issues
Whether the criminal proceedings under Section 138 of Negotiable Instruments Act, 1881 can be sustained when the complainant failed to prove service of demand notice on the accused?
Submissions/Arguments
Petitioner argued that the notice was not served on him and the complainant did not produce any acknowledgment or proof of service.
Respondent argued that the notice was sent by registered post and there is a presumption of service under Section 27 of General Clauses Act, 1897.
Ratio Decidendi
The complainant must prove service of demand notice on the accused under Section 138 of Negotiable Instruments Act, 1881. The presumption of service under Section 27 of General Clauses Act, 1897 is rebuttable, and the burden lies on the complainant to show proper service. Failure to produce postal acknowledgment or other proof of service renders the complaint unsustainable.
Judgment Excerpts
Heard Mr.Sayyad learned Counsel for the petitioner and Mr. Jadhavar, learned Counsel for the respondent.
The present petition has been filed by the petitioner (original accused) against the respondent (original complainant), under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, praying that the impugned order dated 27.11.2009 passed below Exhibit4 by the learned Judicial Magistrate, First Class, Ahmednagar, be quashed and set aside.
Procedural History
The respondent filed a complaint under Section 138 of Negotiable Instruments Act, 1881 against the petitioner before the Judicial Magistrate, First Class, Ahmednagar. The petitioner filed an application (Exhibit 4) for discharge, which was rejected by the Magistrate on 27.11.2009. Aggrieved, the petitioner filed the present Criminal Writ Petition under Article 227 of the Constitution of India read with Section 482 of Code of Criminal Procedure, 1973.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 482
- Constitution of India: 227
- General Clauses Act, 1897: 27
