Case Note & Summary
The petitioners, Sanjay Kashinath Agrawal and Ramakant Vasantlal Agrawal, were original accused nos. 3 and 19 in a complaint filed by Manik Vanaji Gawali under Section 138 of the Negotiable Instruments Act, 1881. The complaint alleged that a cheque issued by the accused was dishonoured. The petitioners filed a criminal writ petition under Articles 226 and 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of the criminal proceedings. The primary ground was that the statutory notice under Section 138 of the Negotiable Instruments Act was not served on them. The complainant had sent the notice by registered post, but the petitioners denied receipt. The court examined the evidence and found that the complainant did not produce any acknowledgment card or other proof of service. The court held that the presumption under Section 27 of the General Clauses Act, 1897, regarding service by post, is rebuttable and does not arise unless the complainant proves that the notice was properly addressed and posted. Since the complainant failed to prove service, the essential ingredient of the offence under Section 138 was not made out. The court allowed the petition and quashed the criminal proceedings against the petitioners.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Service of Notice - The complainant must prove that the statutory notice was served on the accused. Mere dispatch by registered post is not sufficient; the complainant must show that the notice was delivered or that the accused refused to accept it. In the absence of such proof, the presumption under Section 27 of the General Clauses Act does not arise, and the proceedings are liable to be quashed. (Paras 1-10) B) Criminal Procedure Code - Quashing of Proceedings - Section 482 - Inherent Powers - The High Court can quash criminal proceedings if the complaint does not disclose the essential ingredients of the offence. Where the notice under Section 138 of the Negotiable Instruments Act is not proved to have been served, the proceedings are an abuse of process of law and can be quashed under Section 482 Cr.P.C. (Paras 1-10)
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the complainant failed to prove that the statutory notice was served on the accused.
Final Decision
The High Court allowed the petition and quashed the criminal proceedings against the petitioners.
Law Points
- Presumption of service of notice under Section 27 of General Clauses Act
- 1897 is rebuttable
- Notice under Section 138 of Negotiable Instruments Act must be served on the drawer
- Service by registered post requires proof of delivery or refusal
- Complainant must prove service of notice when accused denies receipt
