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2018 (11) TMI 1906 - HC - Indian LawsDishonor of Cheque - service of notice - proceedings have been challenged mainly on the ground that statutory notice as provided under Section 138 (1) of the Negotiable Instruments Act has not been duly served on the petitioner - HELD THAT - From perusal of the complaint, it reveals that the legal notice was issued by the respondent through registered post dated 22.01.2018. However, the petitioner avoided the notice since 25.01.2018 to 30/01/2018. and, therefore, the said notice was returned unserved to the petitioner - Thus, the receipt of acknowledgment card which is filed by the respondent along with the notice does not bear any signature or acknowledgment of the petitioner or anyone else on the same. Further, the postal remarks on the envelope of such registered post also does not show that it is served on the petitioner. So far as remark of kindly contact drawer/drawee bank and please present again is concerned the same would not be a ground for dishonouring of cheque. The contention of the learned counsel for the respondent that Section 482 of Cr.P.C. is not maintainable is also not sustainable in the light of judgment passed by the Apex Court in the case of PRABHU CHAWLA VERSUS STATE OF RAJASTHAN AND ORS. 2016 (9) TMI 1595 - SUPREME COURT . In the said judgment the Apex Court has held that the alternative remedy of revision under Section 397 of Cr.P.C. cannot by itself be a ground to dismiss the petition under section 482 of Cr.P.C. Application disposed off.
Issues:
1. Maintainability of the complaint under Section 138 of the Negotiable Instruments Act due to lack of proper service of statutory notice. 2. Allegation of non-dishonour of the cheque and absence of necessary conditions for an offense under Section 138. 3. Interpretation of legal precedents and their applicability to the case. 4. Consideration of procedural aspects under Section 482 of the Criminal Procedure Code. Analysis: Issue 1: The petitioner sought quashment of proceedings under Section 138 of the Negotiable Instruments Act, contending that the mandatory 15-day notice was not served as required by law. The complaint was challenged on the grounds of improper service of notice, crucial for maintaining the complaint under Section 138. Issue 2: The petitioner argued that the cheque was not dishonored as per Section 138, emphasizing the absence of a valid reason for return by the bank. The respondent's failure to follow up with the bank before filing the complaint was highlighted as a procedural lapse, questioning the validity of the offense under Section 138. Issue 3: Legal precedents, including judgments by the Apex Court and High Courts, were cited by both parties. The petitioner relied on cases such as Shakti Travel & Tours Vs. State of Bihar and Prabhu Chawla V. State of Rajasthan to support the argument against the maintainability of the complaint. Conversely, the respondent referenced judgments like Voltas Limited and others Vs. Hiralal Agarwalla to justify the validity of the complaint. Issue 4: The Court examined the applicability of Section 482 of the Cr.P.C. in light of the arguments presented. The judgment highlighted that the alternative remedy of revision under Section 397 of the Cr.P.C. does not preclude the use of Section 482. Additionally, the Court addressed the significance of the remarks on the returned cheque and their impact on the dishonour of the instrument. The judgment ultimately allowed the applications, setting aside the complaint filed by the respondent under Section 138 of the Negotiable Instruments Act. The decision was based on the failure to serve the statutory notice properly, as mandated by law, and the absence of grounds for dishonouring the cheque. The Court's analysis of legal precedents and procedural considerations underlined the reasoning behind quashing the complaint and emphasized the importance of adherence to statutory requirements in such cases.
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