Case Note & Summary
The petitioner, Pradip S. Dixit, was convicted by the Metropolitan Magistrate, 7th Court, Dadar, Mumbai, for an offence under Section 138 of the Negotiable Instruments Act, 1881, for dishonour of a cheque. The complainant, Lalit More, alleged that the petitioner had issued a cheque which was dishonoured, and a demand notice was sent. The petitioner challenged the conviction before the Sessions Court in Criminal Revision Application No.118 of 2011, which was dismissed on 19.9.2011. Aggrieved, the petitioner filed the present writ petition. The core issue was whether the demand notice was validly served on the petitioner. The petitioner contended that the notice was sent to an address where he was not residing at the time of service, and thus there was no proper service. The court examined the evidence and found that the notice was indeed sent to a wrong address. The court held that for a valid complaint under Section 138, the complainant must prove that the notice was sent to the correct address of the drawer. Since the notice was sent to a wrong address, there was no valid service, and the conviction could not be sustained. The court also noted that the presumption of service under Section 27 of the General Clauses Act, 1897 does not apply when the notice is sent to an incorrect address. Consequently, the court allowed the writ petition, set aside the conviction and sentence, and acquitted the petitioner.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Service of Demand Notice - The complainant must prove that the demand notice was sent to the correct address of the drawer. If the notice is sent to a wrong address, there is no valid service and the complaint under Section 138 is not maintainable. The court held that the notice sent to the accused at an address where he was not residing at the relevant time cannot be considered valid service. (Paras 3-5) B) Evidence Act - Presumption of Service - Section 27 of the General Clauses Act, 1897 - The presumption of due service under Section 27 of the General Clauses Act, 1897 arises only when the notice is sent to the correct address. If the address is incorrect, no presumption can be drawn. The court held that the trial court and revisional court erred in relying on the presumption without verifying the correctness of the address. (Paras 4-5) C) Criminal Procedure Code - Revision - Scope - The High Court in its writ jurisdiction can interfere with concurrent findings of fact if they are perverse or based on no evidence. The court found that the finding of valid service was perverse as the notice was sent to a wrong address. (Para 5)
Issue of Consideration
Whether the demand notice under Section 138 of the Negotiable Instruments Act, 1881 was validly served on the accused when it was sent to an address that was not the accused's correct address at the time of service.
Final Decision
The High Court allowed the writ petition, set aside the conviction and sentence recorded by the Metropolitan Magistrate and confirmed by the Sessions Court, and acquitted the petitioner of the offence under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Service of demand notice under Section 138 of the Negotiable Instruments Act
- 1881 must be at the correct address of the drawer
- Notice sent to a wrong address cannot be deemed valid service
- Presumption of service under Section 27 of the General Clauses Act
- 1897 does not apply if the notice is not sent to the correct address
- Conviction under Section 138 NI Act requires strict compliance with statutory notice requirements
