Case Note & Summary
The case involves two criminal revision applications arising from a complaint under Section 138 of the Negotiable Instruments Act, 1881. The complainant, Ansari Vakil Ahmed, filed STC No. 2821/2000 against Dr. Ansari Muhammad Ismail, an ENT surgeon, alleging dishonour of a cheque. The trial court convicted the accused, and the appellate court confirmed the conviction. The accused then filed Criminal Revision Application No. 83/2010, and the complainant filed Criminal Revision Application No. 134/2010 seeking enhancement of sentence. The key issue was whether the statutory notice under Section 138 was properly served. The accused contended that the notice was sent to his old address in Malegaon, whereas he had moved to a new address in Sangameshwar, Malegaon. The court examined the evidence and found that the notice was indeed sent to the old address, and there was no proof that the accused actually received it. The court held that the presumption of service under Section 27 of the General Clauses Act, 1897 does not apply when the notice is sent to a wrong address. Consequently, the conviction was set aside, and the accused was acquitted. The complainant's revision for enhancement was dismissed as infructuous.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Service of Notice - Proper Address - The complainant must send the statutory notice to the correct address of the accused; notice sent to a wrong address does not constitute valid service, and the presumption under Section 27 of the General Clauses Act, 1897 does not arise. The court held that the conviction was unsustainable as the notice was not served at the accused's correct address (Paras 5-8).
Issue of Consideration
Whether the conviction under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the statutory notice was not sent to the correct address of the accused.
Final Decision
The court allowed Criminal Revision Application No.83/2010, set aside the conviction and sentence, and acquitted the accused. Criminal Revision Application No.134/2010 was dismissed as infructuous.
Law Points
- Service of notice under Section 138 NI Act must be at the correct address
- Notice sent to wrong address is not valid service
- Presumption of service under Section 27 General Clauses Act does not apply if address is incorrect
- Complainant must prove proper service
Case Details
2012 LawText (BOM) (12) 4
Criminal Revision Application No.83 of 2010 with Criminal Revision Application No.134 of 2010
Mr. M.A. Latif for applicant/accused, Mrs. Y.M. Kshirsagar for respondent/State, Mr. N.B. Suryawanshi for respondent no.1/original complainant
Dr. Ansari Muhammad Ismail (in Cri.Rev.83/2010); Ansari Vakil Ahmed (in Cri.Rev.134/2010)
Ansari Vakil Ahmed and State of Maharashtra (in Cri.Rev.83/2010); Dr. Ansari Muhammad Ismail and State of Maharashtra (in Cri.Rev.134/2010)
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Nature of Litigation
Criminal revision against conviction under Section 138 of Negotiable Instruments Act, 1881 for cheque dishonour.
Remedy Sought
Accused sought setting aside of conviction and sentence; complainant sought enhancement of sentence.
Filing Reason
Complainant alleged that a cheque issued by the accused was dishonoured; accused contended that statutory notice was not served at his correct address.
Previous Decisions
Trial court convicted the accused; appellate court confirmed conviction.
Issues
Whether the statutory notice under Section 138 of the Negotiable Instruments Act, 1881 was properly served on the accused.
Whether the conviction can be sustained when notice was sent to a wrong address.
Submissions/Arguments
Accused argued that notice was sent to his old address, not his current address, and he never received it.
Complainant argued that notice was sent by registered post and presumption of service under Section 27 of General Clauses Act applies.
Ratio Decidendi
For a valid conviction under Section 138 of the Negotiable Instruments Act, 1881, the statutory notice must be sent to the correct address of the accused. If the notice is sent to a wrong address, the presumption of service under Section 27 of the General Clauses Act, 1897 does not arise, and the complaint fails.
Judgment Excerpts
The notice was sent to the old address of the accused and not to the correct address.
The presumption under Section 27 of the General Clauses Act does not apply when the notice is sent to a wrong address.
Procedural History
Complainant filed STC No. 2821/2000 before 5th Judicial Magistrate F.C. Dhule. Trial court convicted accused. Accused appealed; appellate court confirmed conviction. Accused filed Criminal Revision No.83/2010; complainant filed Criminal Revision No.134/2010 for enhancement. Both revisions were heard together.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- General Clauses Act, 1897: 27
