Case Note & Summary
The applicants, Suhas @ Pappu s/o Sarjerao Kakade and Sachin s/o Vithalrao Dagdu, filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973 before the Bombay High Court, Aurangabad Bench, seeking quashing of FIR No.75 of 2016 registered at Basmathnagar Police Station, District Hingoli, for offences under Section 138 of the Negotiable Instruments Act, 1881. The FIR was lodged by respondent No.2, Jitendra s/o Ramesh Kamlu, alleging that a cheque issued by the applicants was dishonoured. The applicants contended that the demand notice was sent by Under Postal Certificate (UPC) and not by registered post with acknowledgement due, which is mandatory under the proviso to Section 138. The court examined the requirement of proper service of notice. The learned counsel for the applicants argued that the notice must be sent by registered post or by courier or by any other mode as prescribed, and that UPC does not satisfy this requirement. The learned APP for the State and the counsel for respondent No.2 opposed the application, but the court found that the notice was not served in accordance with law. The court held that the essential ingredient of proper service of demand notice was missing, and therefore, the FIR was liable to be quashed. The court allowed the application and quashed the FIR.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Service of Demand Notice - The complainant sent notice by UPC (Under Postal Certificate) and not by registered post with acknowledgement due - Held that service by UPC is not sufficient compliance with the proviso to Section 138, which requires notice to be sent by registered post or by courier or by any other mode as may be prescribed - FIR quashed as essential ingredient of proper service was missing (Paras 5-8).
Issue of Consideration
Whether the FIR for offence under Section 138 of the Negotiable Instruments Act, 1881 can be quashed on the ground that the demand notice was not served in accordance with law, i.e., by registered post with acknowledgement due?
Final Decision
The application is allowed. FIR No.75 of 2016 registered at Basmathnagar Police Station, District Hingoli, for offence under Section 138 of the Negotiable Instruments Act, 1881, is quashed and set aside.
Law Points
- Proper service of demand notice under Section 138 of Negotiable Instruments Act
- 1881
- Service of notice by UPC is not sufficient
- Requirement of registered post with AD
- Quashing of FIR for lack of essential ingredients
