Case Note & Summary
The petitioner, Sanjay Bapuso Dalvi, aged 57 years, an agriculturist, filed a criminal writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of FIR No. 2509 of 2022 registered at Kolhapur police station for offences under Section 138 of the Negotiable Instruments Act, 1881. The petitioner contended that the respondent No. 2, Yasin B. Mankapure, had issued a cheque which was dishonoured, and a demand notice was sent by registered post. However, the notice was returned with the endorsement 'not claimed'. The petitioner argued that there was no proper service of the demand notice, and therefore, no offence under Section 138 of the Negotiable Instruments Act was made out. The court examined the facts and found that the demand notice was sent by registered post but was returned unserved with the endorsement 'not claimed'. The court held that mere sending of notice by registered post is not sufficient to prove service; there must be evidence of actual delivery or proper dispatch. Since the notice was not served, the essential ingredient of Section 138 was not satisfied. The court quashed the FIR and all consequential proceedings. The judgment was delivered by the Bombay High Court, Circuit Bench at Kolhapur, on 15th March 2022.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Service of Demand Notice - Section 138, Negotiable Instruments Act, 1881 - The petitioner challenged the FIR alleging dishonour of cheque. The court held that the demand notice sent by registered post was returned with endorsement 'not claimed' and there was no evidence of actual delivery or proper dispatch. The court quashed the FIR as no prima facie case was made out. (Paras 1-5) B) Criminal Procedure Code - Quashing of FIR - Inherent Powers - Section 482, Code of Criminal Procedure, 1973 - The court exercised inherent powers to quash the FIR as the allegations did not disclose any offence under Section 138 of the Negotiable Instruments Act, 1881 due to lack of proper service of demand notice. (Paras 1-5)
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the demand notice was returned with endorsement 'not claimed' and there is no evidence of proper service.
Final Decision
The court allowed the petition and quashed FIR No. 2509 of 2022 and all consequential proceedings.
Law Points
- Service of demand notice under Section 138 of Negotiable Instruments Act
- 1881 must be proved by actual delivery or proper postal dispatch
- mere endorsement of 'not claimed' is insufficient to presume service
- Quashing of FIR when no prima facie case is made out
