Case Note & Summary
The petitioner, Prasad S/o Veerayya Kulkarni, who was accused No.7 in C.C.No.790/2016 pending before the Prl. Civil Judge & JMFC, Nippani, filed a criminal petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeking to quash the proceedings against him. The case arose from a complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) for dishonour of a cheque. The petitioner challenged the order dated 23.09.2016 passed by the trial court issuing process against him and the order dated 19.10.2017 passed by the VII Addl. District and Sessions Judge, Belagavi sitting at Chikodi in Criminal Revision Petition No.556/2016, which confirmed the trial court's order. The primary ground for quashing was that the statutory demand notice under Section 138 of the NI Act was not served upon the petitioner. The petitioner argued that the notice was sent to an address where he was not residing at the relevant time, and the acknowledgment produced by the complainant did not bear his signature. The respondent/State opposed the petition, contending that the notice was properly served. The High Court examined the records and found that the notice was sent to an address in Nazarabad, Mysuru, but the petitioner had moved to a different location. The acknowledgment card did not contain the petitioner's signature, and the complainant failed to lead any evidence to prove service. The court held that service of demand notice is a mandatory requirement under Section 138 of the NI Act, and the complainant's failure to prove such service renders the proceedings unsustainable. Consequently, the High Court allowed the petition, quashed the proceedings against the petitioner, and set aside the orders of the courts below.
Headnote
A) Criminal Law - Negotiable Instruments Act - Dishonour of Cheque - Service of Notice - Section 138, Negotiable Instruments Act, 1881 - The petitioner/accused No.7 challenged the summoning order and the order in revision on the ground that the demand notice was not served on him. The court examined the evidence and found that the notice was sent to an address where the accused was not residing and the acknowledgment was not proved. Held that the complainant failed to prove service of notice, which is a mandatory requirement under Section 138, and therefore the proceedings are liable to be quashed. (Paras 3-6) B) Criminal Procedure Code - Inherent Powers - Quashing of Proceedings - Section 482, Code of Criminal Procedure, 1973 - The High Court exercised its inherent powers under Section 482 CrPC to quash the proceedings against the petitioner/accused No.7 as the continuation of proceedings would be an abuse of process of law due to lack of proper service of demand notice. (Para 7)
Issue of Consideration
Whether the criminal proceedings against the petitioner/accused No.7 under Section 138 of the Negotiable Instruments Act, 1881 can be quashed on the ground that the demand notice was not properly served upon him?
Final Decision
The High Court allowed the criminal petition, quashed the proceedings in C.C.No.790/2016 against the petitioner/accused No.7, and set aside the order dated 23.09.2016 passed by the Prl. Civil Judge & JMFC, Nippani and the order dated 19.10.2017 passed by the VII Addl. District and Sessions Judge, Belagavi sitting at Chikodi in Criminal Revision Petition No.556/2016.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- requirement of proper service of demand notice
- Section 482 CrPC inherent powers
- quashing of criminal proceedings
- presumption under Section 139 NI Act
- burden of proof on complainant
