Case Note & Summary
The applicants (accused) filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of criminal proceedings in Summary Criminal Case No. 244 of 2010 pending before the Judicial Magistrate First Class, Nagar, arising out of a complaint under Section 138 of the Negotiable Instruments Act, 1881. The respondent No. 2 (complainant) alleged that the applicants issued a cheque for Rs. 1,50,000 which was dishonoured. The complainant sent a demand notice by UPC (Under Postal Certificate) and claimed that the notice was served. The applicants contended that they never received the notice and that the complainant failed to prove service. The court examined the record and found that the complainant only produced a UPC receipt and an acknowledgment due card which was not signed by any of the applicants. The court held that mere sending of notice by UPC is not sufficient to prove service, and the presumption under Section 27 of the General Clauses Act, 1897 applies only when notice is sent by registered post. Since the complainant failed to prove that the notice was actually served on the applicants, the essential ingredient of Section 138 was not satisfied. The court allowed the application and quashed the criminal proceedings.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Service of Notice - Section 138 - The complainant must prove that the demand notice was sent to the correct address of the accused and that it was actually served or refused. Sending notice by UPC (Under Postal Certificate) without proof of actual service is insufficient to attract the presumption under Section 27 of the General Clauses Act, 1897. The court held that the proceedings were liable to be quashed as the complainant failed to establish service of notice. (Paras 5-8) B) Criminal Procedure Code - Quashing of Proceedings - Inherent Powers - Section 482 - The High Court can exercise its inherent powers to quash criminal proceedings if the complaint does not disclose the essential ingredients of the offence. In the present case, since the requirement of service of notice under Section 138 of the Negotiable Instruments Act was not satisfied, the proceedings were quashed. (Paras 9-10)
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the complainant failed to prove proper service of demand notice on the accused?
Final Decision
The court allowed the criminal application and quashed the criminal proceedings in Summary Criminal Case No.244 of 2010 pending before the Judicial Magistrate First Class, Nagar.
Law Points
- Service of notice under Section 138 of Negotiable Instruments Act must be proved by complainant
- Notice sent by UPC is not sufficient proof of service
- Presumption of service under Section 27 of General Clauses Act applies only when notice is sent by registered post
- Complainant must prove that notice was sent to correct address and that it was actually served or refused
