Case Note & Summary
The petitioner, Kishinbhagwan R. Sharma, challenged the order dated 17.03.2012 passed by the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai, issuing process against him in a complaint filed by respondent No.2, Lahoti Overseas Ltd., alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The petitioner contended that the statutory notice under Section 138 was not served at his correct address. The petitioner resided in Gujarat, but the notice was sent to an address in Mumbai where he neither resided nor carried on business. The acknowledgment was not received from the petitioner. The court examined the complaint and found that the notice was sent to an incorrect address, and there was no evidence of service on the petitioner. The court held that the mandatory requirement of service of notice under Section 138 was not satisfied, and therefore, the issuance of process was invalid. The petition was allowed, and the order issuing process was quashed. The court also set aside the complaint against the petitioner.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Notice Requirement - Proper Service - The complaint under Section 138 of the Negotiable Instruments Act, 1881 must be preceded by a valid notice served at the correct address of the drawer. In the present case, the notice was sent to an address where the petitioner did not reside or carry on business, and the acknowledgment was not received from the petitioner. The court held that the issuance of process was invalid as the mandatory requirement of service of notice was not complied with. (Paras 4-10) B) Criminal Procedure Code - Cognizance of Offence - Section 190 - Issuance of Process - The Magistrate must ensure that the preconditions under Section 138 of the NI Act are satisfied before taking cognizance. Since the notice was not properly served, the order issuing process was quashed. (Paras 11-13)
Issue of Consideration
Whether the issuance of process under Section 138 of the Negotiable Instruments Act, 1881 was valid when the statutory notice was not served at the correct address of the accused.
Final Decision
The petition is allowed. The order dated 17.03.2012 issuing process against the petitioner is quashed and set aside. The complaint against the petitioner is also quashed.
Law Points
- Notice under Section 138 NI Act must be sent to the correct address of the drawer
- service at wrong address invalidates complaint
- proper service is a prerequisite for cognizance
