Case Note & Summary
The applicants, Sanjay Pukhraj Parikh and Anita Sanjay Parikh, filed a criminal application under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of criminal proceedings in RCC No. 123 of 2016 pending before the Judicial Magistrate First Class, Jalna, arising out of a complaint under Section 138 of the Negotiable Instruments Act, 1881. The non-applicant no. 2, Sujata Nandkumar Vaidya, had filed the complaint alleging that a cheque issued by the applicants was dishonoured. The applicants contended that the statutory demand notice sent by the complainant was not served upon them as it was returned with the endorsement 'not claimed'. They argued that without valid service of notice, the essential ingredient of Section 138 NI Act was not satisfied, and the proceedings were liable to be quashed. The court examined the facts and found that the notice was sent by registered post but was returned unclaimed. The complainant did not lead any evidence to show that the applicants had knowledge of the notice or deliberately avoided service. The court held that the presumption of service under Section 27 of the General Clauses Act, 1897 is rebuttable and, in this case, stood rebutted by the endorsement 'not claimed'. The burden then shifted to the complainant to prove actual service or deliberate evasion, which she failed to do. Consequently, the court allowed the application and quashed the criminal proceedings, holding that the complaint did not disclose the essential ingredients of the offence under Section 138 NI Act.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Service of Notice - Section 138 - The court considered whether a demand notice sent by registered post returned with endorsement 'not claimed' constitutes valid service. Held that mere dispatch is not enough; the complainant must prove that the accused deliberately avoided service. In the absence of such proof, the notice is not deemed served and proceedings under Section 138 are not maintainable. (Paras 5-10) B) General Clauses Act - Presumption of Service - Section 27 - The presumption under Section 27 of the General Clauses Act, 1897 is rebuttable. When the notice is returned with 'not claimed', the presumption is rebutted and the burden shifts to the complainant to show that the accused had knowledge of the notice and deliberately avoided it. (Paras 7-9) C) Criminal Procedure Code - Inherent Powers - Quashing of Proceedings - Section 482 - The High Court can exercise inherent powers under Section 482 CrPC to quash proceedings if the complaint does not disclose the essential ingredients of the offence. Where the notice is not validly served, the proceedings are an abuse of process of law. (Para 11)
Issue of Consideration
Whether the service of demand notice under Section 138 of the Negotiable Instruments Act, 1881 can be deemed valid when the notice sent by registered post is returned with the endorsement 'not claimed' and the complainant fails to prove that the accused deliberately avoided service.
Final Decision
The application is allowed. The criminal proceedings in RCC No. 123 of 2016 pending before the Judicial Magistrate First Class, Jalna, are quashed and set aside.
Law Points
- Presumption of service under Section 27 of the General Clauses Act
- 1897 is rebuttable
- Notice sent by registered post returned with endorsement 'not claimed' does not constitute deemed service
- Complainant must prove actual service or deliberate evasion by accused
- Section 138 NI Act requires strict compliance with notice requirement
