Recently, in the case of Kishore Sharma vs. Sachin Dubey, the Supreme Court held that the proceedings under Section 138 of the Negotiable Instruments Act (NI Act) cannot be quashed on the ground that the demand notice not duly served within the statutory period.
In this case, the Madhya Pradesh High Court allowed the quashing petition filed by the accused under Section 482 of Cr.P.C. on the grounds that the legal notice was not duly served on him within the statutory period and because of the remark noted on the cheque return memo.
The bench comprising Justice AM Khanwilkar and Justice Dinesh Maheshwari, set aside the High Court order and observed:
"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."
The Court has iterated that the service of notice to the accused under Section 138 of the Negotiable Instruments Act is a triable issue and cannot be proceeded as an indisputable position in a petition filed under Section 482 CrPC by the accused for quashing of the complaint filed under Section 138 of the NI Act.
Hence, the Supreme Court allowed the appeal and directed that the complaint under the NI Act shall be proceeded against the respondent.
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