Case Note & Summary
The petitioner, Salim s/o Jilani Qureshi, filed a criminal writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of FIR No. 123 of 2017 registered at Jinsi Police Station, Aurangabad, for offences under Sections 406, 420, 467, 468, 471, 120-B of the Indian Penal Code, 1860 and Section 138 of the Negotiable Instruments Act, 1881. The FIR was lodged by respondent No. 2, Anjum Ara Siddiqui, alleging that the petitioner had issued a cheque which was dishonoured. The petitioner contended that the demand notice under Section 138 of the Negotiable Instruments Act was not validly served as it was sent by speed post but returned with endorsement 'not claimed' and the address on the notice was incomplete, lacking the locality. The court examined the notice and found that the address mentioned was 'Azam Colony Road, Roshan Gate, Aurangabad' but did not specify the locality, which was essential for proper service. The court held that service of demand notice is a mandatory requirement for prosecution under Section 138 of the Negotiable Instruments Act, 1881, and since the notice was not validly served, the FIR was liable to be quashed. The court allowed the petition and quashed the FIR.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Service of Demand Notice - Mandatory Requirement - The court held that service of demand notice is a mandatory prerequisite for prosecution under Section 138 of the Negotiable Instruments Act, 1881. The notice must be sent to the correct address of the accused. In this case, the notice was sent by speed post but returned with endorsement 'not claimed' and the address was incomplete as it did not mention the locality. The court quashed the FIR as the notice was not validly served. (Paras 1-10) B) Criminal Procedure Code - Quashing of FIR - Section 482 - Inherent Powers - The High Court exercised its inherent powers under Section 482 of the Code of Criminal Procedure, 1973 to quash the FIR as the continuation of proceedings would be an abuse of process of law. The court found that the demand notice was not properly served, which is a condition precedent for the offence under Section 138 of the Negotiable Instruments Act, 1881. (Paras 1-10)
Issue of Consideration
Whether the demand notice under Section 138 of the Negotiable Instruments Act, 1881 was validly served on the accused when the notice was sent by speed post but returned with endorsement 'not claimed' and the address on the notice was incomplete?
Final Decision
The court allowed the petition and quashed FIR No. 123 of 2017 registered at Jinsi Police Station, Aurangabad, for offences under Sections 406, 420, 467, 468, 471, 120-B of IPC and Section 138 of Negotiable Instruments Act.
Law Points
- Service of demand notice under Section 138 of Negotiable Instruments Act
- 1881 is mandatory
- Proper service requires delivery to the correct address of the accused
- Notice sent by speed post but returned with endorsement 'not claimed' does not constitute valid service if address is incorrect
