Case Note & Summary
The petitioner, Rajesh Kashiram Karad, filed a Criminal Writ Petition under Article 226 of the Constitution of India before the Bombay High Court, Aurangabad Bench, seeking quashing of Criminal Case No. 123 of 2014 pending before the Judicial Magistrate First Class, Latur, arising out of a complaint under Section 138 of the Negotiable Instruments Act, 1881. The respondent no.2, Sharad Manikrao Shinde, had filed the complaint alleging dishonour of a cheque issued by the petitioner. The petitioner contended that the demand notice was sent by UPC (Under Postal Certificate) and not by registered post, and therefore there was no proper service of notice as required under Section 138 of the Act. The respondent no.2 argued that the notice was sent by UPC and that the petitioner had received it. The court examined the provisions of Section 138 and Section 142 of the Negotiable Instruments Act, 1881, and noted that the proviso to Section 138 requires the payee to make a demand for payment by 'giving notice in writing' to the drawer. The court held that sending notice by UPC does not satisfy the requirement of 'giving notice' as it does not provide any presumption of service. The court relied on the principle that the mode of service must be such that it can be proved that the notice was served. Since the complainant failed to prove service of notice, the complaint was not maintainable. The court allowed the petition and quashed the criminal proceedings.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Service of Notice - Section 138, 142 - Notice sent by UPC (Under Postal Certificate) is not sufficient compliance with the requirement of 'giving notice in writing' - The court held that the mode of service by UPC does not raise a presumption of service and the complainant must prove actual service - In the absence of proper service, the complaint is not maintainable (Paras 5-8).
Issue of Consideration
Whether service of demand notice under Section 138 of the Negotiable Instruments Act, 1881 by UPC (Under Postal Certificate) is sufficient compliance with the statutory requirement of 'giving notice in writing'.
Final Decision
The court allowed the Criminal Writ Petition and quashed Criminal Case No. 123 of 2014 pending before the Judicial Magistrate First Class, Latur. Consequently, Criminal Application No. 4441 of 2015 was disposed of.
Law Points
- Service of demand notice by UPC is not sufficient compliance with Section 138 of Negotiable Instruments Act
- 1881
- Notice must be sent by registered post or authorized courier to raise presumption of service
- Complainant must prove service of notice to establish offence under Section 138
