Case Note & Summary
The petitioners, accused Nos.4, 6, and 5 in C.C.No.5577/2012 pending before the IV Additional Chief Metropolitan Magistrate, Bengaluru, filed a petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking quashing of the order dated 03.05.2016 issuing process against them and the consequent criminal proceedings. The case arose from a complaint filed by respondent No.2 under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) alleging dishonour of a cheque. The petitioners contended that the statutory demand notice under Section 138 of the NI Act was not served at their correct address. The notice was sent to an address where the petitioners did not reside at the time of service, and thus there was no proper service. The respondent No.2 argued that the notice was sent to the address available with the bank and that the petitioners had not informed the complainant of any change of address. The High Court examined the records and found that the notice was indeed sent to an address where the petitioners were not residing. The court held that proper service of notice is a mandatory requirement under Section 138 of the NI Act, and failure to serve notice at the correct address renders the proceedings invalid. The court quashed the order issuing process and the criminal proceedings against the petitioners, allowing the petition.
Headnote
A) Criminal Law - Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Notice Requirement - Proper service of demand notice within 30 days of dishonour is mandatory - Notice sent to an address where the accused did not reside at the time of service is not valid service - Held that the proceedings are liable to be quashed as the notice was not served at the correct address (Paras 5-10).
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be quashed when the statutory notice was not served at the correct address of the accused?
Final Decision
The petition is allowed. The order dated 03.05.2016 in C.C.No.5577/2012 passed by the IV Additional Chief Metropolitan Magistrate, Bengaluru, issuing process against the petitioners is quashed. Consequently, the criminal proceedings in C.C.No.5577/2012 insofar as the petitioners are concerned are quashed.
Law Points
- Section 138 of Negotiable Instruments Act
- 1881 requires proper service of demand notice within 30 days of dishonour
- Section 482 of Cr.P.C. allows quashing of proceedings to prevent abuse of process
- Notice sent to wrong address is not valid service
Case Details
2020 LawText (KAR) (01) 15
Criminal Petition No.9419/2016
Sri Prasanna Kumar P. for petitioners, Sri H.R.Showri (HCGP) for R1 & R3, Sri Ravi B. Naik (Senior Counsel) for Sri J.G.Chandra Mohan for R2
Smt. Komala, Smt. K.Anitha, K.Archana
State of Karnataka, Mr.M.R.Sampangiramaiah, Central Crime Branch (Special Squad)
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Nature of Litigation
Criminal petition under Section 482 Cr.P.C. to quash order issuing process and criminal proceedings in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
Petitioners (accused Nos.4, 6, 5) sought quashing of order dated 03.05.2016 issuing process against them and quashing of criminal proceedings in C.C.No.5577/2012.
Filing Reason
The petitioners claimed that the statutory demand notice under Section 138 of the NI Act was not served at their correct address, and thus the proceedings were an abuse of process of law.
Previous Decisions
The IV Additional Chief Metropolitan Magistrate, Bengaluru, had issued process against the petitioners on 03.05.2016 in C.C.No.5577/2012.
Issues
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be quashed when the statutory notice was not served at the correct address of the accused?
Submissions/Arguments
Petitioners argued that the notice under Section 138 was sent to an address where they did not reside, and thus there was no proper service.
Respondent No.2 argued that the notice was sent to the address available with the bank and that the petitioners had not informed the complainant of any change of address.
Ratio Decidendi
Proper service of demand notice under Section 138 of the Negotiable Instruments Act, 1881 is a mandatory requirement. If the notice is sent to an address where the accused does not reside at the time of service, it is not valid service, and the criminal proceedings based on such notice are liable to be quashed under Section 482 of Cr.P.C. to prevent abuse of process.
Judgment Excerpts
This petition has been filed by the petitioners-accused Nos.4, 6, 5 under Section 482 of Cr.P.C. praying to quash the order dated 3.5.2016 in C.C.No.5577/2012 passed by IV Additional Chief Metropolitan Magistrate Court, Bengaluru.
The notice was sent to an address where the petitioners did not reside at the time of service, and thus there was no proper service.
Proper service of notice is a mandatory requirement under Section 138 of the NI Act, and failure to serve notice at the correct address renders the proceedings invalid.
Procedural History
The complaint under Section 138 of the NI Act was filed by respondent No.2, leading to C.C.No.5577/2012. On 03.05.2016, the IV ACMM issued process against the petitioners. The petitioners then filed Criminal Petition No.9419/2016 under Section 482 Cr.P.C. seeking quashing of the order and proceedings. The High Court heard the matter and delivered judgment on 13.01.2020.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): Section 482
- Negotiable Instruments Act, 1881: Section 138
