Case Note & Summary
The petitioner, Abid Shiraz Merchant, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court seeking quashing of criminal proceedings initiated against him under Section 138 of the Negotiable Instruments Act, 1881. The respondent no. 2, Ramprakash Ramdas Chowdhry, had filed a complaint alleging dishonour of a cheque issued by the petitioner. The petitioner contended that the statutory demand notice under Section 138 was not served at his correct address, as he had moved from the address mentioned in the complaint. The court examined the records and found that the notice was indeed sent to an old address where the petitioner no longer resided. The court held that proper service of the demand notice is a mandatory condition precedent for maintaining a prosecution under Section 138 of the Negotiable Instruments Act. Since the notice was not served at the correct address, the proceedings were quashed. The court allowed the petition and set aside the complaint and all consequential proceedings.
Headnote
A) Criminal Law - Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Requirement of Proper Service of Demand Notice - The court considered whether the demand notice was served at the correct address of the accused, as the notice was sent to an old address while the accused had moved. Held that proper service of notice is a mandatory condition precedent for prosecution under Section 138, and failure to serve at the correct address vitiates the proceedings (Paras 1-10).
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the statutory demand notice was not served at the correct address of the accused.
Final Decision
The court allowed the petition, quashed the complaint and all consequential proceedings under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Section 138 of Negotiable Instruments Act
- 1881
- requirement of proper service of demand notice
- quashing of criminal proceedings for non-compliance with statutory conditions
Case Details
2025 LawText (BOM) (09) 167
Writ Petition No. 8410 of 2025
Mr. Surel Shah, Senior Advocate with Devesh Juvekar with Kavita Chavan and Mithilesh Chalke i/by Rajani Associates, for the Petitioner; Ms. Vaishali Nimbalkar, AGP, for the State; Mr. Sunil Mishra, for the Respondent no. 2.
State of Maharashtra and Ramprakash Ramdas Chowdhry
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Nature of Litigation
Criminal writ petition under Article 226 of the Constitution of India seeking quashing of proceedings under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner sought quashing of the complaint and all consequential proceedings under Section 138 of the Negotiable Instruments Act.
Filing Reason
Petitioner alleged that the statutory demand notice under Section 138 was not served at his correct address, as he had moved from the address mentioned in the complaint.
Issues
Whether the demand notice under Section 138 of the Negotiable Instruments Act was properly served at the correct address of the accused.
Submissions/Arguments
Petitioner argued that the notice was sent to an old address where he no longer resided, thus not properly served.
Respondent no. 2 contended that the notice was validly served.
Ratio Decidendi
Proper service of the statutory demand notice at the correct address of the accused is a mandatory condition precedent for prosecution under Section 138 of the Negotiable Instruments Act, 1881. Failure to serve at the correct address vitiates the proceedings.
Judgment Excerpts
Rule. Rule made returnable forthwith and, with the consent of the counsel for the parties, heard finally.
The court held that proper service of notice is a mandatory condition precedent for prosecution under Section 138.
Procedural History
The petitioner filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court seeking quashing of criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881. The court heard the matter and delivered judgment on 18 September 2025.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Constitution of India: 226
