Case Note & Summary
The petitioner, K.S. Mahadevan, filed a writ petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, seeking to quash the complaint in C.C. No. 2541/2017 (PCR No. 30/2017) pending before the Judicial Magistrate First Class-II, Mangaluru. The complaint was filed by the first respondent, Cyprian Menezes, alleging an offence under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of a cheque. The petitioner contended that the statutory demand notice under Section 138(b) of the NI Act was not served on him. The notice was sent by ordinary post to an address that was not the petitioner's correct address, and the petitioner never received it. The court examined the requirements of Section 138 of the NI Act, which mandates that the payee must make a demand for payment by giving a notice in writing to the drawer within 30 days of the receipt of information about dishonour. The proviso to Section 138(b) requires that the notice be sent by registered post or by other modes as prescribed. The court noted that the complainant had sent the notice by ordinary post, and there was no proof of service. The court held that the presumption of service under Section 114 of the Indian Evidence Act, 1872, and Section 27 of the General Clauses Act, 1897, applies only when the notice is sent by registered post. Since the notice was sent by ordinary post, no such presumption arose. The court also observed that the address on the notice was incomplete and not the petitioner's correct address. Therefore, the complaint did not disclose a prima facie offence under Section 138 of the NI Act. The court allowed the petition, quashed the complaint and all proceedings in C.C. No. 2541/2017 insofar as they related to the petitioner.
Headnote
A) Criminal Law - Negotiable Instruments Act, 1881 - Section 138 - Dishonour of Cheque - Service of Demand Notice - The complainant must prove that the demand notice was sent by registered post with acknowledgment due or by other modes as per Section 138(b) proviso. Mere dispatch by ordinary post or insufficient address may not constitute valid service. (Paras 1-10) B) Evidence Act, 1872 - Section 114 - Presumption of Service - The presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act regarding service by post arises only when the notice is sent by registered post. No such presumption applies to ordinary post. (Paras 8-10) C) Criminal Procedure Code, 1973 - Section 482 - Inherent Powers - Quashing of Complaint - The High Court can quash a complaint under Section 482 CrPC if the allegations do not disclose a prima facie offence or if the proceedings are an abuse of process of law. (Paras 1-10)
Issue of Consideration
Whether the criminal complaint under Section 138 of the Negotiable Instruments Act, 1881, and the proceedings in C.C. No. 2541/2017, are liable to be quashed on the ground that the statutory demand notice was not properly served on the petitioner/accused.
Final Decision
The writ petition is allowed. The complaint in PCR No. 30/2017 (C.C. No. 2541/2017) and all proceedings therein are quashed insofar as they relate to the petitioner.
Law Points
- Quashing of criminal proceedings
- Section 138 Negotiable Instruments Act
- 1881
- service of demand notice
- presumption of service
- registered post acknowledgment due
- Section 27 General Clauses Act
- 1897
- Section 114 Indian Evidence Act
- 1872
