1. Complaint under Section 138, Negotiable Instruments Act — High Court quashed proceedings based on non-service of legal notice and cheque return memo remarks. (Para 3 )
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2019 Supreme(SC) 990
SUPREME COURT OF INDIA
A.M. KHANWILKAR, DINESH MAHESHWARI, JJ.
KISHORE SHARMA – APPELLANT(S)
VERSUS
SACHIN DUBEY – RESPONDENT(S)
CRIMINAL APPEAL NO.1325 OF 2019 (Arising out of SLP(Crl.) No(s).137 of 2019) WITH CRIMINAL APPEAL NO.1326 OF 2019
(Arising out of SLP(Crl.) No(s).166 of 2019)
Decided On : 03-09-2019
Important Points
The issue of whether a notice was duly served is a triable issue and cannot be considered an indisputable position.
Subject
Criminal Law - Negotiable Instruments Act
Act Referred
Headnote
Negotiable Instruments Act - Section 138 - Summary: The court allowed the appeal against the order of the High Court that quashed the proceedings instituted against the respondent under Section 138 of the Negotiable Instruments Act, 1881. The respondent argued that a legal notice was not duly served on him within the statutory period. The court held that the issue of whether the notice was duly served is a triable issue and cannot be considered an indisputable position. The impugned judgment and order were set aside, and the complaint was allowed to proceed against the respondent in accordance with the law.
Fact of the Case:
The respondent filed an application for quashing the proceedings instituted against him under Section 138 of the Negotiable Instruments Act, 1881, arguing that a legal notice was not duly served on him within the statutory period.Finding of the Court:
The court found that the reason given by the respondent for quashing the proceedings was unacceptable as the issue of whether the notice was duly served is a triable issue.Ratio Decidendi:
The court held that the issue of whether a notice was duly served is a triable issue and cannot be considered an indisputable position. Final Decision: The impugned judgment and order were set aside, and the appeal was allowed. The complaint shall now proceed against the respondent in accordance with the law.Legal Category Hierarchy
Advocates Appeared:
For the Petitioner(s):Dhruv Dwivedi, Ashish Yadav, Sachin Sharma, Advocates
For the Petitioner(s):Dhruv Dwivedi, Ashish Yadav, Sachin Sharma, Advocates
Table of Contents
2. Respondent contended that the legal notice was not served within the statutory period and challenged the validity of the cheque return memo. (Para 3 )
3. Service of legal notice and remarks on cheque return memos are triable issues requiring evidence and cannot be treated as indisputable positions for quashing. (Para 4 , 5 )
4. Whether a legal notice was duly served or the validity of a cheque return memo are triable issues that cannot justify quashing of criminal proceedings. (Para 4 , 5 )
5. Impugned judgments set aside — Appeals allowed — Complaints restored to proceed before the Trial Court. (Para 5 , 6 , 7 )
6. Is the service of a legal notice under Section 138 of the Negotiable Instruments Act a triable issue?
Yes, the court held that the fact of whether a notice was duly served on the respondent is a triable issue and cannot be treated as an indisputable position to quash proceedings. (Para 4 , 5 )
7. Can a cheque return memo's remarks be used as a ground for quashing proceedings under Section 482 Cr.P.C.?
No, the court held that remarks noted on a cheque return memo are triable issues that require the parties to produce evidence and cannot be used to quash the case. (Para 4 )
8. What is the effect of a triable issue on a petition for quashing under Section 482 of the Cr.P.C.?
If the grounds for quashing, such as the service of notice or cheque return memo remarks, are triable issues requiring evidence, the proceedings cannot be quashed. (Para 4 , 5 )
ORDER
Crl.A. @ SLP(Crl.) No(s).137/2019
1. Leave granted.
2. Despite successive notices served on the respondent, he has chosen not to appear. The last notice clearly mentioned that the matter will be finally disposed of at notice stage.
3. The present appeal takes exception to the order dated 15th November, 2018 passed by the High Court of Madhya Pradesh, Indore Bench, thereby it allowed the application filed by the respondent for quashing of proceedings instituted against him under Section 138 of the Negotiable Instruments Act, 1881. The sole argument of the respondent commended to the High Court was that a legal notice was not duly served on him within the statutory period.
4. After hearing counsel for the appellant, we have no manner of doubt that the reason commended to the High Court, is unacceptable. For, the fact that notice was duly served on the respondent or otherwise, is a triable issue; and cannot be proceeded as an indisputable position-as is expounded by this Court in ‘ Ajeet Seeds Limited vs. K. Gopala Krishnaiah ’ reported in (2014) 12 SCC 685.
5. Accordingly, the impugned judgment and order is set aside and the appeal is allowed. Consequently, the complaint shall now proceed against the respondent in accordance with law.
6. The parties shall appear before the Trial Court on 14th October, 2019.
Crl.A. @ SLP(Crl.) No.166/2019
1. Leave granted.
2. Despite successive notices served on the respondent, he has chosen not to appear. The last notice clearly mentioned that the matter will be finally disposed of at notice stage.
3. The present appeal arises from the judgment and order dated 15.11.2018 passed by the High Court of Madhya Pradesh, Indore Bench in M.Cr.C. No.17894 of 2018 whereby the High Court allowed the quashing petition filed by the respondent under Section 482 of Cr.P.C. on two counts. Firstly, that the legal notice has not been served on the respondent within the statutory period and secondly, because of the remark noted on the cheque return memo.
4. Both these facts would require the parties to produce evidence and are triable issues, as expounded by this Court in ‘ Ajeet Seeds Limited vs. K. Gopala Krishnaiah ’ reported in (2014) 12 SCC 685 and in ‘ Laxmi Dyechem vs. State of Gujarat and Others ’ reported in (2012) 13 SCC 375. As a result, even this appeal ought to succeed. The impugned judgment and order is accordingly set aside and the appeal is allowed.
5. Consequently, the complaint shall now proceed against the respondent in accordance with law.
6. The parties shall appear before the Trial Court on 14th October, 2019 before the Trial Court.
ORDER
Crl.A. @ SLP(Crl.) No(s).137/2019
1. Leave granted.
2. Despite successive notices served on the respondent, he has chosen not to appear. The last notice clearly mentioned that the matter will be finally disposed of at notice stage.
3. The present appeal takes exception to the order dated 15th November, 2018 passed by the High Court of Madhya Pradesh, Indore Bench, thereby it allowed the application filed by the respondent for quashing of proceedings instituted against him under Section 138 of the Negotiable Instruments Act, 1881. The sole argument of the respondent commended to the High Court was that a legal notice was not duly served on him within the statutory period.
4. The High Court was impressed by that argument and allowed the application M.Cr.C. No.17897/2018 filed under Section 482 of Cr.P.C. by the respondent and resultantly directed quashing of criminal case instituted against the respondent.
5. After hearing counsel for the appellant, we have no manner of doubt that the reason commended to the High Court, is unacceptable. For, the fact that notice was duly served on the respondent or otherwise, is a triable issue; and cannot be proceeded as an indisputable position-as is expounded by this Court in ‘ Ajeet Seeds Limited vs. K. Gopala Krishnaiah ’ reported in (2014) 12 SCC 685.
6. Accordingly, the impugned judgment and order is set aside and the appeal is allow
