Case Note & Summary
The petitioners, original accused Nos. 3 to 6, filed a criminal writ petition challenging the order dated 3rd April 2003 issuing process under Section 138 of the Negotiable Instruments Act, 1881 passed by the Judicial Magistrate First Class, Pune, and the order dated 23rd December 2003 passed by the 4th Additional Sessions Judge, Pune in Criminal Revision Application No. 864 of 2003 rejecting their application for recall of process. The respondent No. 1, a partnership firm, had filed a complaint alleging that a cheque issued by the accused was dishonoured. The petitioners contended that the notice of demand under Section 138(b) was not served on them as it was sent to an incorrect address. The court examined the facts and found that the notice was indeed sent to a wrong address and the petitioners did not receive it. The court held that service of notice is a mandatory requirement under Section 138(b) and the complainant must prove proper service. Since the notice was not served, the process issued was without jurisdiction. The court also held that the revisional court erred in rejecting the application for recall of process. The court allowed the petition, quashed the process issued against the petitioners, and set aside the revisional order.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Service of Notice - Section 138(b) - The complainant must prove that the notice of demand was served on the accused before filing the complaint. In this case, the notice was sent to an incorrect address, and the accused did not receive it. The court held that the process issued without proper service of notice is liable to be quashed. (Paras 2-10) B) Criminal Procedure Code - Recall of Process - Section 204 - The court has inherent power to recall process if it is satisfied that the process was issued without proper application of mind or on incorrect facts. The revisional court erred in rejecting the application for recall of process. (Paras 11-15)
Issue of Consideration
Whether the process issued under Section 138 of the Negotiable Instruments Act, 1881 can be recalled when the notice of demand was not properly served on the accused?
Final Decision
The petition is allowed. The order dated 3rd April 2003 issuing process and the order dated 23rd December 2003 rejecting recall of process are quashed and set aside. The process against the petitioners is recalled.
Law Points
- Service of notice under Section 138(b) of Negotiable Instruments Act must be proved by complainant
- Summons must be served at correct address
- Process can be recalled if issued without proper service
