Case Note & Summary
The petitioner, Sri H.N. Nagaraj, filed multiple criminal petitions under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash orders taking cognizance of offences under Section 138 of the Negotiable Instruments Act, 1881, passed by the XX Additional Chief Metropolitan Magistrate, Bengaluru, in various complaint cases. The petitioner was the proprietor of M/s Venkateshwara Stone Crushers. The respondents in the respective petitions were Suresh Lal Hira Lal and S. Priya Soliwal. The petitioner contended that the demand notices sent by the complainants were not properly served on him, as they were returned as 'unclaimed'. The court examined the records and found that the notices were sent by registered post but were returned unclaimed. The court noted that the complainants did not take steps to serve the notice by other modes, such as publication or personal service. The court held that mere sending of notice by registered post is not sufficient to prove service when the notice is returned unclaimed, and the complainant must prove that the accused deliberately avoided service. Since the complainants failed to do so, the court held that the cognizance orders were unsustainable and quashed them to prevent abuse of process.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Demand Notice - Proper Service - The court considered whether the demand notice was properly served on the accused. The court held that the notice sent by registered post was returned as 'unclaimed' and the complainant failed to prove that the accused deliberately avoided service. The court quashed the cognizance orders. (Paras 1-10) B) Criminal Procedure Code - Quashing of Proceedings - Section 482 - Abuse of Process - The court held that continuing proceedings without proper service of notice would be an abuse of process of law. The court allowed the petitions and quashed the orders taking cognizance. (Paras 1-10)
Issue of Consideration
Whether the cognizance order under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the demand notice was not properly served on the accused?
Final Decision
The court allowed the petitions and quashed the impugned orders taking cognizance in C.C.No.20484/2018 and C.C.No.32057/2018.
Law Points
- Section 138 of Negotiable Instruments Act
- 1881 requires proper service of demand notice within 30 days of dishonour
- Section 482 of Code of Criminal Procedure
- 1973 allows quashing of proceedings to prevent abuse of process
- Section 27 of General Clauses Act
- 1897 provides presumption of service when notice is sent by registered post
