Case Note & Summary
The applicant, Smt. Harjeet Kaur, filed an application under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash the criminal proceedings in Complaint Case No. 5133/2005 pending before the 4th Court of J.M.F.C., Yavatmal, and to set aside the order dated 21/09/2010 passed by the Sessions Judge, Yavatmal in Criminal Revision No. 68/2006. The complaint was filed by Arunkumar Chandulal Pobaru, proprietor of Sarvottam Petro Marketing, through his attorney, against the applicant for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The complainant alleged that the applicant, who was running a business under the name 'New Sona Transport Agency' at Wani, had requested the complainant to sell diesel on credit for her trucks. In discharge of the liability, she issued a cheque for Rs. 5,82,261/- drawn on Bank of India, Branch Bhamani, dated 17/10/2005. The cheque was presented on 28/10/2005 but was dishonoured due to insufficient funds. A statutory notice was sent, but the applicant contended that the notice was not served upon her as it was sent to a wrong address. The trial court issued process, and the revision against that order was dismissed. The High Court examined the facts and found that the notice was sent to the applicant at Ballarpur, whereas the cheque was issued from Wani, and the applicant's address on the cheque was not the same as the one to which notice was sent. The court held that the complainant failed to prove that the notice was sent to the correct address of the accused, which is a mandatory requirement under Section 138 of the Negotiable Instruments Act. Consequently, the court allowed the application, quashed the criminal proceedings, and set aside the impugned order.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Service of Notice - The complainant must prove that the statutory notice was sent to the correct address of the accused and that it was duly served - In the absence of proper service, the complaint is not maintainable - Held that the proceedings were liable to be quashed (Paras 5-7).
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act can be quashed on the ground that the statutory notice was not properly served upon the accused?
Final Decision
The application is allowed. The impugned order dated 21/09/2010 passed by the Sessions Judge, Yavatmal in Criminal Revision No. 68/2006 is set aside. The criminal proceedings in Complaint Case No. 5133/2005 pending before the 4th Court of J.M.F.C., Yavatmal are quashed.
Law Points
- Service of notice under Section 138 of Negotiable Instruments Act is mandatory
- Notice must be sent to the correct address of the accused
- Dishonour of cheque due to insufficient funds
- Quashing of criminal proceedings under Section 482 CrPC
