Case Note & Summary
The applicants, Madan Shankar Bhivsane and others, filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of Criminal Complaint No. 123 of 2016 pending before the Judicial Magistrate First Class, Aurangabad, for an offence under Section 138 of the Negotiable Instruments Act, 1881. The complaint was filed by respondent No. 2, Shashirekha Deepak Bhivsane, alleging that a cheque issued by the applicants was dishonoured. The applicants contended that the demand notice was not served upon them as the postal endorsement of 'refused' was not proved by examining the postman. The court examined the evidence and found that the complainant had not produced any cogent proof of service. The court held that the presumption under Section 27 of the General Clauses Act, 1897 is rebuttable and the complainant must prove service beyond reasonable doubt. Since the service was not proved, the proceedings were quashed.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Service of Notice - Section 138 - The court considered whether the demand notice was properly served on the accused. The complainant failed to prove service as the postal endorsement of 'refused' was not supported by the postman's testimony or any other evidence. Held that mere endorsement is insufficient to prove service, and the proceedings were quashed (Paras 1-10).
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the service of demand notice is not properly proved?
Final Decision
The court allowed the application and quashed Criminal Complaint No. 123 of 2016 pending before the Judicial Magistrate First Class, Aurangabad.
Law Points
- Service of demand notice under Section 138 of Negotiable Instruments Act must be proved by cogent evidence
- mere endorsement of 'refused' on envelope is insufficient
- presumption under Section 27 of General Clauses Act is rebuttable
- complainant must prove service beyond reasonable doubt
Case Details
2017 LawText (BOM) (11) 37
Criminal Application No.905 of 2017
Mr. Milind (surname not mentioned)
Madan s/o Shankar Bhivsane and others
The State of Maharashtra and Sow. Shashirekha w/o Deepak Bhivsane
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Nature of Litigation
Criminal application under Section 482 CrPC for quashing of complaint under Section 138 of Negotiable Instruments Act, 1881
Remedy Sought
Quashing of Criminal Complaint No. 123 of 2016 pending before JMFC, Aurangabad
Filing Reason
Alleged dishonour of cheque and lack of proper service of demand notice
Issues
Whether the demand notice under Section 138 of NI Act was properly served on the accused?
Whether the criminal proceedings can be sustained without proper proof of service of notice?
Submissions/Arguments
Applicants argued that the demand notice was not served on them as the postal endorsement of 'refused' was not proved by examining the postman.
Respondent argued that the notice was sent by registered post and the endorsement of 'refused' is sufficient proof of service.
Ratio Decidendi
Service of demand notice under Section 138 of the Negotiable Instruments Act, 1881 must be proved by cogent evidence. Mere endorsement of 'refused' on the returned envelope is not sufficient to prove service, especially when the postman is not examined. The presumption under Section 27 of the General Clauses Act, 1897 is rebuttable and the complainant must prove service beyond reasonable doubt.
Judgment Excerpts
Service of notice under Section 138 of Negotiable Instruments Act, 1881 must be proved by cogent evidence.
Mere endorsement of 'refused' on envelope is insufficient to prove service.
Procedural History
The applicants filed Criminal Application No.905 of 2017 under Section 482 CrPC before the Bombay High Court, Bench at Aurangabad, seeking quashing of Criminal Complaint No. 123 of 2016 pending before JMFC, Aurangabad, for offence under Section 138 of NI Act. The court heard the matter and passed the order on 30/11/2017.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 482
- General Clauses Act, 1897: 27
