Case Note & Summary
The petitioner, Baburao S/o Hemachandrappa Kalal, filed a criminal petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeking to quash the order dated 18.07.2018 and the proceedings in C.C.No.407/2018 pending before the Court of Civil Judge and JMFC, Huvinhadagali, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act). The respondent, S.M. Ravindrashetty, had filed a complaint alleging that a cheque issued by the petitioner was dishonoured. The petitioner contended that the statutory notice under Section 138 NI Act was not served on him at his correct address and that the complaint was filed beyond the limitation period. The High Court examined the complaint and the notice sent by the complainant. It found that the notice was sent to an address in Haveri, whereas the complaint mentioned the petitioner's address as Huvinhadagali. There was no proof that the notice was served on the petitioner at his correct address. The court held that the mandatory requirement of service of notice under the proviso to Section 138 NI Act was not complied with, and therefore, the complaint did not disclose the commission of an offence. The court allowed the petition, quashed the order dated 18.07.2018, and dismissed the proceedings in C.C.No.407/2018.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Statutory Notice - Section 138, proviso (b) - The complainant must prove that the demand notice was sent within 30 days of the dishonour of the cheque and that it was served on the drawer at his correct address. In the present case, the notice was sent to an address different from the one mentioned in the complaint, and there was no proof of service. Held that the complaint is not maintainable and is liable to be quashed (Paras 4-6). B) Criminal Procedure Code - Inherent Powers - Quashing of Complaint - Section 482 CrPC - The High Court can exercise its inherent powers to quash a criminal complaint if the allegations do not disclose the commission of an offence or if the proceedings are an abuse of process of court. Here, the complaint under Section 138 NI Act lacked essential ingredients as the statutory notice was not properly served. Held that the proceedings are quashed (Paras 7-8).
Issue of Consideration
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 is liable to be quashed for non-compliance with the statutory notice requirements under the proviso to Section 138, specifically regarding the time and manner of service of demand notice.
Final Decision
The petition is allowed. The order dated 18.07.2018 passed by the Court of Civil Judge and JMFC, Huvinhadagali in C.C.No.407/2018 and the proceedings therein are quashed.
Law Points
- Statutory notice under Section 138 NI Act must be served within 30 days of dishonour
- Notice must be sent to the correct address of the drawer
- Service of notice by registered post with acknowledgment due is mandatory
- Quashing under Section 482 CrPC is permissible when complaint lacks essential ingredients
