Case Note & Summary
The petitioner, an accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed a petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the criminal proceedings. The complaint alleged that a cheque issued by the petitioner was dishonoured due to insufficient funds. The petitioner contended that the notice of demand was not served upon him as it was sent to an incorrect address. The respondent/complainant argued that the notice was sent by registered post to the address mentioned in the cheque and there was a presumption of service. The High Court examined the records and found that the notice was indeed sent to an address that was not the petitioner's current address. The court held that the mandatory requirement of service of notice under Section 138 was not complied with. Consequently, the court quashed the criminal proceedings against the petitioner. The court also observed that the presumption of service under Section 27 of the General Clauses Act is rebuttable and in this case, the petitioner had successfully rebutted it by showing that the notice was sent to a wrong address.
Headnote
A) Criminal Procedure - Quashing of FIR - Section 482 CrPC - Inherent powers - The High Court can quash criminal proceedings to prevent abuse of process of court when the complaint does not disclose any offence or when the essential ingredients of the offence are missing. (Paras 1-10) B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Notice of Demand - The service of notice is a mandatory requirement under Section 138 of the NI Act. If the notice is not sent to the correct address or is not properly served, the prosecution cannot be sustained. (Paras 5-8) C) Evidence - Presumption of Service - Section 27 of the General Clauses Act - When a notice is sent by registered post to the correct address, there is a presumption of service. However, this presumption is rebuttable and if the accused proves that he did not receive the notice, the prosecution fails. (Paras 6-9)
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be quashed when the notice of demand was not properly served upon the accused?
Final Decision
The High Court allowed the petition and quashed the criminal proceedings against the petitioner.
Law Points
- Quashing of criminal proceedings
- Section 138 NI Act
- Service of notice
- Presumption of service
- Registered post acknowledgment due
