Case Note & Summary
The petitioners, who are family members, filed an application under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of FIR No. 5493 of 2016 registered at Nashik Police Station for offences under Section 138 of the Negotiable Instruments Act, 1881. The dispute arose from a cheque issued by the petitioners which was dishonoured. The respondent/complainant sent a demand notice to an address where the petitioners no longer resided, and the notice was returned unserved. The petitioners contended that they were not aware of the notice and that the proceedings were initiated without proper service. The court examined the records and found that the notice was indeed sent to a wrong address, and there was no evidence that the petitioners had received the notice. The court held that the mandatory requirement of service of demand notice under Section 138 NI Act was not complied with, and therefore the criminal proceedings could not continue. The court quashed the FIR and all consequential proceedings.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Demand Notice - Proper Service - The requirement of sending a demand notice to the drawer's correct address is mandatory. Where the notice was sent to an old address and not to the address where the accused actually resided, the proceedings under Section 138 are not maintainable. Held that the complainant must ensure service at the correct address to invoke the presumption under Section 139. (Paras 5-8) B) Criminal Procedure Code - Quashing of FIR - Section 482 - Abuse of Process - When the demand notice is not served at the correct address, the criminal proceedings amount to an abuse of process of law. The High Court can quash such proceedings to prevent miscarriage of justice. (Paras 9-10)
Issue of Consideration
Whether the criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the demand notice was not served at the correct address of the accused?
Final Decision
The court allowed the application and quashed FIR No. 5493 of 2016 and all consequential proceedings.
Law Points
- Proper service of demand notice is mandatory for Section 138 NI Act
- Notice must be sent to correct address
- Presumption under Section 139 NI Act is rebuttable
- Quashing of FIR when no prima facie case
