Case Note & Summary
The applicant, Amit Digvijay Singh, filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973, challenging the order dated 9th May 2019 passed by the 6th Judicial Magistrate First Class, Nashik, issuing process against him for an offence under Section 138 of the Negotiable Instruments Act, 1881. The respondent-complainant, Gokuldas Jagannath Bhutada, alleged that the applicant had taken a hand loan of Rs. 30,00,000 and issued a cheque dated 15.12.2017 which was dishonoured. The complainant sent a demand notice dated 20.01.2018 via registered post, which was returned with the endorsement 'not claimed'. The complainant then filed a complaint on 27.02.2018, and the Magistrate issued process on 09.05.2019. The applicant contended that the notice was not properly served as it was returned unclaimed and no other mode of service was attempted. The court examined the provisions of Section 138 and the requirement of proper service of notice. It held that the notice must be served in accordance with the principles of natural justice and that mere sending by registered post is not sufficient if the notice is returned unclaimed. The court quashed the order issuing process and dismissed the complaint, allowing the application.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Demand Notice - Service of Notice - The court considered whether the complainant had properly served the statutory demand notice on the accused before filing the complaint. The court held that the notice sent by registered post was returned with endorsement 'not claimed' and the complainant did not take steps to serve notice by other modes like affixture or publication. Therefore, the issuance of process was quashed as there was no proper service of notice. (Paras 1-15)
Issue of Consideration
Whether the issuance of process under Section 138 of the Negotiable Instruments Act, 1881 was valid when the demand notice was not properly served on the accused.
Final Decision
The court allowed the application, quashed the order issuing process, and dismissed the complaint.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- demand notice
- service of notice
- issuance of process
- prima facie case
