Case Note & Summary
The petitioner, Sahajanand Investments Pvt. Ltd., filed four criminal writ petitions under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of criminal complaints filed against it under Section 138 of the Negotiable Instruments Act, 1881. The complaints were filed by the respondents, Fernando Pinto, Jose Cristovam Pinto, and Rui Manuel de Sa Pinto, alleging dishonour of cheques issued by the petitioner. The petitioner contended that the demand notices were not served upon it as the postal endorsements were 'not claimed' and the addresses mentioned in the complaints were incorrect. The respondents argued that the notices were sent by registered post and the endorsement 'not claimed' amounts to deemed service. The court examined the provisions of Section 138 of the Negotiable Instruments Act, 1881 and Section 27 of the General Clauses Act, 1897. It held that the presumption of service under Section 27 arises only when the notice is sent to the correct address. In the present case, the complaints did not disclose the correct address of the petitioner, and the postal endorsements were 'not claimed'. The court found that the respondents failed to prove that the notices were sent to the correct address and that the petitioner had an opportunity to receive them. Consequently, the court quashed the criminal proceedings in all four petitions, holding that the continuation of the proceedings would be an abuse of the process of law.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Service of Demand Notice - Section 138 - The complainant must prove that the demand notice was sent to the correct address of the drawer and that the drawer had an opportunity to receive it. Mere endorsement 'not claimed' does not constitute deemed service. The presumption under Section 27 of the General Clauses Act, 1897 is rebuttable and the burden is on the complainant to establish proper service. (Paras 10-15) B) Criminal Procedure Code - Quashing of Complaint - Inherent Powers - Section 482 - Where the complaint does not disclose the correct address of the accused and the postal endorsement is 'not claimed', the proceedings are an abuse of process of law and liable to be quashed. (Paras 16-20) C) Evidence - Presumption of Service - Section 27 of the General Clauses Act, 1897 - The presumption of service under Section 27 arises only when the notice is sent by registered post to the correct address. If the endorsement is 'not claimed', the presumption is rebutted and the complainant must lead further evidence. (Paras 12-14)
Issue of Consideration
Whether the service of demand notice under Section 138 of the Negotiable Instruments Act, 1881 can be deemed to have been served when the postal endorsement is 'not claimed' and the complainant fails to prove that the notice was sent to the correct address and that the addressee had an opportunity to receive it.
Final Decision
The court allowed the petitions and quashed the criminal proceedings in all four cases.
Law Points
- Service of demand notice under Section 138 of the Negotiable Instruments Act
- 1881 must be proved by the complainant
- mere endorsement 'not claimed' is insufficient to establish deemed service
- presumption under Section 27 of the General Clauses Act
- 1897 is rebuttable
- complainant must prove that notice was sent to correct address and that addressee had opportunity to receive it.
