Case Note & Summary
The petitioner, M. Babanna, filed a criminal petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking quashment of the entire proceedings in PCR No.5543/2017 pending before the IV Additional Chief Metropolitan Magistrate, Bengaluru City, and to set aside the order dated 05.05.2017 passed by the Magistrate referring the matter for investigation under Section 156(3) Cr.P.C. to the Station House Officer, Jayanagar Police Station. The second respondent, T. Manoharan, had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) alleging that the petitioner had issued a cheque for Rs.5,00,000/- which was dishonoured due to insufficient funds. The complainant claimed that a demand notice was sent by registered post, but the complaint did not contain any acknowledgment or proof of service. The Magistrate, without examining the complainant under Section 200 Cr.P.C., directly passed an order under Section 156(3) Cr.P.C. directing the police to investigate. The petitioner contended that the complaint did not disclose proper service of the demand notice, which is a mandatory requirement under the proviso to Section 138 NI Act, and therefore the proceedings were an abuse of process. The High Court, after hearing the parties, held that the complaint failed to establish that the demand notice was served on the accused. The court noted that the complaint merely stated that the notice was sent by registered post but did not provide any acknowledgment or other evidence of service. Relying on the principle that the requirement of notice service is a mandatory condition precedent for an offence under Section 138 NI Act, the court found that the complaint did not disclose a cognizable offence. Consequently, the order under Section 156(3) Cr.P.C. directing investigation was unsustainable. The High Court allowed the petition, quashed the entire proceedings in PCR No.5543/2017, and set aside the order dated 05.05.2017.
Headnote
A) Criminal Procedure Code - Quashing of Proceedings - Section 482 Cr.P.C. - Abuse of Process - The High Court quashed proceedings in PCR No.5543/2017 where the Magistrate had ordered investigation under Section 156(3) Cr.P.C. in a complaint under Section 138 of the Negotiable Instruments Act, 1881, as the complaint did not disclose proper service of demand notice on the accused. Held that continuation of proceedings would be an abuse of process of law. (Paras 1-10) B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Requirement of Proper Service of Demand Notice - The complainant failed to establish that the demand notice was served on the accused as required under the proviso to Section 138. The complaint merely alleged that the notice was sent by registered post but did not provide proof of service. Held that without proper service, the essential ingredient of Section 138 is not satisfied. (Paras 3-8) C) Criminal Procedure Code - Investigation - Section 156(3) Cr.P.C. - Order for Investigation - The Magistrate's order under Section 156(3) Cr.P.C. directing police investigation was set aside because the complaint did not disclose a cognizable offence under Section 138 NI Act due to lack of proper notice service. Held that such an order cannot be sustained when the complaint itself is defective. (Paras 5-10)
Issue of Consideration
Whether the order passed by the Magistrate under Section 156(3) Cr.P.C. directing investigation is sustainable when the complaint under Section 138 of the Negotiable Instruments Act, 1881 does not disclose proper service of demand notice as required under the proviso to Section 138.
Final Decision
The High Court allowed the petition, quashed the entire proceedings in PCR No.5543/2017, and set aside the order dated 05.05.2017 passed by the IV Addl. C.M.M., Bengaluru, referring the matter for investigation under Section 156(3) Cr.P.C.
Law Points
- Quashing of criminal proceedings under Section 482 Cr.P.C.
- Dishonour of cheque under Section 138 Negotiable Instruments Act
- 1881
- Requirement of proper service of demand notice
- Presumption under Section 139 NI Act
- Order under Section 156(3) Cr.P.C. for investigation
