Case Note & Summary
The judgment involves a batch of criminal writ petitions filed by the petitioners (Prabhakar Dattatraya Gune, Sanjay Chandrakant Kirloskar, and M.V. Patwardhan) seeking quashing of criminal complaints filed against them under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) for dishonour of cheques. The respondents (Vishnukant Bapurao Urankar, Narhar Madhav Panditrao, Anil Sakharam Dandekar, Babaji Ramchandra Deshpande, and others) had filed complaints alleging that cheques issued by the petitioners were dishonoured. The petitioners contended that the demand notices under Section 138 NI Act were not served upon them, and therefore the complaints were not maintainable. The court examined the provisions of Section 138 and 142 of the NI Act along with Section 27 of the General Clauses Act, 1897. It noted that for a complaint under Section 138 to be maintainable, the complainant must prove that a demand notice was sent by registered post with acknowledgment due to the correct address of the accused. The court observed that in the present cases, the complainants had not placed on record sufficient evidence to show that the notices were sent to the correct addresses of the petitioners. The court held that the presumption of service under Section 27 of the General Clauses Act arises only when the notice is sent to the correct address. Since the complainants failed to establish this, the complaints were liable to be quashed. The court allowed the petitions and quashed the criminal complaints.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Service of Demand Notice - Section 138, 142 NI Act - Proper service of demand notice is a prerequisite for filing a complaint under Section 138 - The court held that the complainant must prove that the notice was sent by registered post with acknowledgment due to the correct address of the accused - In the absence of such proof, the complaint is not maintainable (Paras 10-15). B) General Clauses Act - Service of Notice - Section 27 - Presumption of service arises when a notice is sent by registered post to the correct address - The court held that the presumption under Section 27 can be rebutted by the accused by showing that the notice was not actually delivered - However, the burden is on the complainant to first establish that the notice was sent to the correct address (Paras 12-14). C) Criminal Procedure Code - Quashing of Complaint - Section 482 CrPC - Inherent power to quash proceedings when complaint does not disclose essential ingredients of offence - The court held that where the demand notice is not served, the complaint under Section 138 NI Act is liable to be quashed (Paras 16-18).
Issue of Consideration
Whether the criminal complaints under Section 138 of the Negotiable Instruments Act, 1881 were maintainable when the demand notices were not properly served on the accused as required by law.
Final Decision
The court allowed the petitions and quashed the criminal complaints under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Service of demand notice under Section 138 NI Act must be in accordance with Section 27 of General Clauses Act
- 1897
- Registered post with acknowledgment due is sufficient service if sent to correct address
- Complainant must prove service of notice
- Dishonour of cheque not sufficient without valid notice
