Case Note & Summary
The case involves two criminal applications filed by the applicants (original accused) seeking quashing of FIR No. 0033 of 2018 and connected proceedings under Section 138 of the Negotiable Instruments Act, 1881. The dispute arose from a cheque dishonour matter where the complainant, Sanjay Vasant Mahale, alleged that the accused issued a cheque which was dishonoured. The applicants contended that the demand notice under Section 138 was not properly served on them as it was sent to an incorrect address. The court examined the facts and found that the notice was sent by speed post to an address that did not belong to the accused, and the postal endorsement showed 'not claimed'. The court held that service of a valid demand notice is a mandatory requirement for the offence under Section 138, and in the absence of proper service, the FIR cannot be sustained. The court quashed the FIR and all consequential proceedings.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Service of Demand Notice - Proper service of demand notice is a mandatory prerequisite for constituting an offence under Section 138 of the Negotiable Instruments Act, 1881 - The court held that where the notice was sent by speed post to an address that was not the correct address of the accused, and the notice was returned as 'not claimed', there was no valid service of notice, and therefore the essential ingredient of the offence was missing - Consequently, the FIR was quashed (Paras 1-10).
Issue of Consideration
Whether the FIR under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the demand notice was not properly served on the accused due to incorrect address.
Final Decision
The court quashed the FIR and all consequential proceedings in Criminal Application No. 0033 of 2018 and Criminal Application No. 0497 of 2018.
Law Points
- Service of demand notice under Section 138 of Negotiable Instruments Act must be to the correct address of the accused
- Notice sent by speed post but returned as 'not claimed' does not constitute proper service if address is incorrect
- Quashing of FIR when essential ingredient of offence is missing
