Case Note & Summary
The present petition was filed by the original accused, Digambar Abhiman Gondwale and Jayshree Abhiman Gondwale, under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of FIR No. 02200 of 2018 registered at Neknur Police Station, District Beed, for offences under Section 138 of the Negotiable Instruments Act, 1881. The dispute arose from a cheque issued by the applicants in favour of the complainant, Swati Ashruba Gondwale, which was dishonoured. The applicants contended that the demand notice was sent by Under Postal Certificate (UPC) and not by registered post, and therefore there was no proper service of notice as required under Section 138 of the NI Act. The State of Maharashtra and the complainant opposed the petition. The court examined the requirement of 'giving notice' under Section 138 of the NI Act and the mode of service. It held that the notice must be sent by registered post or by any other mode that ensures receipt by the addressee. Sending by UPC does not attract the presumption of service under Section 27 of the General Clauses Act, 1897, which applies only to registered post. Since the notice was not properly served, the essential ingredient of Section 138 was missing, and the FIR was liable to be quashed. The court allowed the petition and quashed the FIR.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Demand Notice - Proper Service - Notice sent by Under Postal Certificate (UPC) is not sufficient compliance with the requirement of 'giving notice' under Section 138 of the Negotiable Instruments Act, 1881. The court held that the mode of service by UPC does not create a presumption of service under Section 27 of the General Clauses Act, 1897, which applies only to registered post. Therefore, the complaint under Section 138 is not maintainable without proper service. (Paras 5-7) B) Criminal Procedure Code - Quashing of FIR - Section 482 - Inherent Powers - Where the allegations in the FIR do not disclose the commission of an offence, the High Court can exercise its inherent powers under Section 482 of the Code of Criminal Procedure, 1973 to quash the proceedings. The court held that since the demand notice was not properly served, the essential ingredient of Section 138 NI Act was missing, and the FIR was liable to be quashed. (Paras 8-9)
Issue of Consideration
Whether the demand notice sent by Under Postal Certificate (UPC) constitutes proper service under Section 138 of the Negotiable Instruments Act, 1881, and whether the FIR can be quashed for lack of essential ingredients.
Final Decision
The court allowed the petition and quashed FIR No. 02200 of 2018 registered at Neknur Police Station, District Beed, for offences under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Proper service of demand notice is mandatory for Section 138 NI Act
- notice by UPC is not sufficient compliance
- presumption of service under Section 27 General Clauses Act applies only to registered post
- quashing of FIR for lack of essential ingredients
