Case Note & Summary
The petitioner, M/s Soft-touch Computer through its proprietor Shashikant Bhaskar Zope, filed three criminal writ petitions under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of criminal proceedings in three separate complaints filed by the respondents under Section 138 of the Negotiable Instruments Act, 1881. The complaints alleged that cheques issued by the petitioner were dishonoured. The petitioner contended that the demand notices were not served on him as required under Section 138(b) of the Act. The court examined the complaint allegations and found that the complainant had not pleaded that the notice was sent to the correct address of the accused. The court noted that the address mentioned in the complaint was incomplete and not the correct address of the petitioner. The court held that the mandatory requirement of service of notice under Section 138(b) was not satisfied. The court also observed that the presumption of service under Section 27 of the General Clauses Act, 1897 does not arise if the notice is not sent to the correct address. Consequently, the court quashed the criminal proceedings in all three petitions, allowing the petitions.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Service of Notice - Section 138(b) - Mandatory Requirement - The complainant must prove that the demand notice was sent by registered post or other mode to the correct address of the accused. Mere dispatch is insufficient; actual service or proper despatch to correct address must be established. (Paras 1-10)
B) Evidence - Presumption of Service - Section 27 of General Clauses Act, 1897 - Rebuttable Presumption - The presumption of service under Section 27 of the General Clauses Act arises only when the notice is sent by registered post to the correct address. If the address is incorrect or incomplete, no presumption arises. (Paras 5-8)
C) Criminal Procedure Code - Quashing of Proceedings - Section 482 - Inherent Powers - Where the complaint does not disclose the essential ingredients of the offence under Section 138 of the Negotiable Instruments Act, the High Court can quash the proceedings to prevent abuse of process. (Paras 9-10)
Issue of Consideration
Whether the criminal proceedings for dishonour of cheque under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the complainant failed to prove that the demand notice was served on the accused in accordance with Section 138(b) of the Act.
Final Decision
The court allowed the criminal writ petitions and quashed the criminal proceedings in all three complaints.
Law Points
- Service of notice under Section 138(b) of Negotiable Instruments Act
- 1881 is mandatory
- Notice must be served in the manner prescribed under Section 138(b)
- Complainant must prove service of notice
- Presumption of service under Section 27 of General Clauses Act
- 1897 is rebuttable
- Burden of proof on complainant to show notice was sent to correct address
Case Details
2014 LawText (BOM) (04) 39
Criminal Writ Petition No.196 of 2014 with Criminal Writ Petition No.197 of 2014 with Criminal Writ Petition No.198 of 2014
Shri C.P. Patil for petitioner; Mrs. S.G. Chincholkar, A.P.P. for respondent No.1/State; Respondent No.2 - notice not issued
M/s Soft-touch Computer, through its Proprietor Shashikant s/o Bhaskar Zope
The State of Maharashtra and B.R. System, Jalgaon (in Cri.W.P. No.196/2014); The State of Maharashtra and B.R. System, Jalgaon (in Cri.W.P. No.197/2014); The State of Maharashtra and B.R. Traders, Jalgaon (in Cri.W.P. No.198/2014)
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Nature of Litigation
Criminal writ petitions under Section 482 of Code of Criminal Procedure, 1973 seeking quashing of complaints under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner sought quashing of criminal proceedings in three complaints filed by respondents for dishonour of cheques.
Filing Reason
Petitioner contended that the demand notices under Section 138(b) of the Negotiable Instruments Act were not served on him as required by law.
Issues
Whether the demand notice under Section 138(b) of the Negotiable Instruments Act, 1881 was properly served on the accused?
Whether the presumption of service under Section 27 of the General Clauses Act, 1897 arises when the notice is sent to an incorrect address?
Whether the criminal proceedings can be quashed under Section 482 of the Code of Criminal Procedure, 1973 for non-compliance of mandatory requirement of service of notice?
Submissions/Arguments
Petitioner argued that the demand notices were not served on him as the address mentioned in the complaints was incomplete and not his correct address.
Respondent/State argued that the notices were sent by registered post and there is a presumption of service under Section 27 of the General Clauses Act.
Ratio Decidendi
For an offence under Section 138 of the Negotiable Instruments Act, 1881, the complainant must prove that the demand notice was sent to the correct address of the accused. If the address is incorrect or incomplete, the mandatory requirement of service under Section 138(b) is not satisfied, and the proceedings are liable to be quashed under Section 482 of the Code of Criminal Procedure, 1973.
Judgment Excerpts
The complainant has not pleaded that the notice was sent to the correct address of the accused.
The presumption under Section 27 of the General Clauses Act does not arise if the notice is not sent to the correct address.
The mandatory requirement of service of notice under Section 138(b) of the Negotiable Instruments Act is not satisfied.
Procedural History
The petitioner filed three criminal writ petitions under Section 482 of the Code of Criminal Procedure, 1973 before the High Court of Judicature at Bombay, Bench at Aurangabad, challenging the complaints filed by the respondents under Section 138 of the Negotiable Instruments Act, 1881. The court heard the petitions at the admission stage with consent of counsel and reserved judgment on 21/3/2014, pronouncing it on 22/4/2014.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 138(b)
- General Clauses Act, 1897: 27
- Code of Criminal Procedure, 1973: 482
