Case Note & Summary
The applicant, Girish Gangaram Chitta, filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of FIR No. I129/2017 registered at Tofkhana Police Station, Ahmednagar for offences under Sections 406, 420, 504, 506 read with 34 of the Indian Penal Code, 1860 and Section 138 of the Negotiable Instruments Act, 1881. The dispute arose from a business transaction where the applicant issued a cheque to respondent no. 2, Surekha Santosh Gharwadhve, which was dishonoured. The respondent sent a demand notice by registered post, but the notice was returned with the endorsement 'not claimed'. The applicant contended that he never received the notice and that the FIR was an abuse of process. The court examined the requirement of proper service of demand notice under Section 138 of the Negotiable Instruments Act. It held that the presumption of service under Section 27 of the General Clauses Act, 1897 is not automatic and can be rebutted. Since the notice was not actually delivered to the applicant, the essential condition for the offence under Section 138 was not satisfied. Consequently, the entire FIR was quashed as it lacked the necessary ingredients for the alleged offences.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Demand Notice - Proper Service - The complainant must prove that the demand notice was actually served on the accused; mere dispatch by registered post is not sufficient if the notice is returned unserved. The presumption under Section 27 of the General Clauses Act is rebuttable and cannot be invoked when the notice is not delivered. (Paras 5-8) B) Criminal Procedure Code - Quashing of FIR - Section 482 - Abuse of Process - Where the essential ingredients of Section 138 of the Negotiable Instruments Act are not satisfied due to lack of proper service of demand notice, the criminal proceedings amount to an abuse of process of law and are liable to be quashed. (Paras 9-10)
Issue of Consideration
Whether the presumption of service of notice under Section 27 of the General Clauses Act, 1897 can be drawn when the notice sent by registered post is returned with endorsement 'not claimed' or 'refused'?
Final Decision
The court allowed the application and quashed FIR No. I129/2017 registered at Tofkhana Police Station, Ahmednagar.
Law Points
- Presumption of service under Section 27 of General Clauses Act is rebuttable
- Proper service of demand notice is mandatory under Section 138 of Negotiable Instruments Act
- 1881
- Dishonour of cheque under Section 138 NI Act requires strict compliance with statutory conditions
