Case Note & Summary
The petitioner, Sau. Jaishree w/o Shivprasad Bajaj, filed a Criminal Writ Petition under Article 227 of the Constitution of India before the High Court of Judicature of Bombay, Bench at Aurangabad, seeking quashing of the judgment and order dated 12.11.2009 passed by the learned Sessions Judge, Jalgaon in Criminal Revision Application No.57/2009, which confirmed the order of the trial court. The dispute arose from a complaint filed by Respondent No.2, Agrasen Urban Cooperative Credit Society Ltd., against the petitioner under Section 138 of the Negotiable Instruments Act, 1881, alleging dishonour of a cheque issued by the petitioner. The petitioner contended that the notice of demand was not sent by registered post as required under Section 138, and the complainant failed to prove service of notice within the statutory period of 30 days. The trial court and the revisional court had dismissed the petitioner's objections. The High Court, after hearing the parties, held that sending notice by registered post is mandatory under Section 138 of the Negotiable Instruments Act, 1881, and the complainant's failure to do so and to prove service within 30 days renders the complaint not maintainable. The court allowed the petition, quashed the impugned orders, and set aside the criminal proceedings against the petitioner.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Notice of Demand - Service by Registered Post - The court considered whether the complaint under Section 138 is maintainable when the notice was sent by ordinary post and not by registered post, and the complainant failed to prove service within 30 days. Held that sending notice by registered post is mandatory under Section 138, and failure to do so renders the complaint not maintainable. The court quashed the proceedings. (Paras 1-10)
B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Limitation - Service of Notice - The court examined the requirement that notice must be served within 30 days of receipt of information about dishonour. Held that the complainant must prove service of notice within the prescribed period, and failure to do so results in the complaint being barred by limitation. (Paras 1-10)
Issue of Consideration
Whether the criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 is maintainable when the notice of demand was not sent by registered post and the complainant failed to prove service of notice within the statutory period of 30 days.
Final Decision
The court allowed the petition, quashed the impugned judgment and order dated 12.11.2009 passed in Criminal Revision Application No.57/2009, and set aside the criminal proceedings against the petitioner.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Notice of demand
- Service of notice
- Registered post
- Presumption of service
- Dishonour of cheque
- Limitation period
- Complaint maintainability
Case Details
2010 LawText (BOM) (07) 8
Criminal Writ Petition No.1132 of 2009
Mr. Jayant R. Patil for Petitioner; Mr. S.D. Kaldate, APP for Respondent No.1 State; Mr. A.I. Deshmukh for Respondent No.2
Sau. Jaishree w/o Shivprasad Bajaj
1) The State of Maharashtra, 2) Shri Agrasen Urban Cooperative Credit Society Ltd.
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Nature of Litigation
Criminal writ petition under Article 227 of Constitution of India seeking quashing of criminal proceedings under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner sought issuance of appropriate writ for quashing and setting aside the judgment and order dated 12.11.2009 passed in Criminal Revision Application No.57/2009 by learned Sessions Judge, Jalgaon, confirming the order of the trial court.
Filing Reason
Petitioner challenged the maintainability of the complaint under Section 138 of Negotiable Instruments Act on the ground that notice of demand was not sent by registered post and service of notice was not proved within 30 days.
Previous Decisions
The trial court dismissed the petitioner's objections and the revisional court confirmed that order.
Issues
Whether the complaint under Section 138 of Negotiable Instruments Act, 1881 is maintainable when the notice of demand was not sent by registered post?
Whether the complainant proved service of notice within the statutory period of 30 days?
Submissions/Arguments
Petitioner argued that notice was not sent by registered post as required under Section 138, and service was not proved within 30 days.
Respondent No.2 argued that notice was sent by ordinary post and service was deemed sufficient.
Ratio Decidendi
Sending notice by registered post is mandatory under Section 138 of the Negotiable Instruments Act, 1881. Failure to send notice by registered post and failure to prove service of notice within 30 days renders the complaint not maintainable.
Judgment Excerpts
Heard learned Counsel for the respective parties.
By the present petition filed by the petitioner under Article 227 of Constitution of India, she prayed for issuance of appropriate writ for quashing and setting aside the Judgment and Order dated 12.11.2009 passed in Criminal Revision Application No.57/2009 by learned Sessions Judge, Jalgaon, thereby confirming the order dated ...
Procedural History
The petitioner filed a Criminal Writ Petition under Article 227 of the Constitution of India before the High Court of Judicature of Bombay, Bench at Aurangabad, challenging the judgment and order dated 12.11.2009 passed by the learned Sessions Judge, Jalgaon in Criminal Revision Application No.57/2009, which confirmed the order of the trial court dismissing the petitioner's objections regarding maintainability of the complaint under Section 138 of the Negotiable Instruments Act, 1881.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Constitution of India: Article 227
