This Criminal Original Petition has been filed to call for the records in S.T.C.No.533 of 2016 on the file of the learned District Munsif cum Judicial Magistrate, Neyveli and quash the same insofar as the petitioner is concerned.
2. According to the petitioner he had placed an order with the respondent company seeking for supply of lignite powder. When the material was supplied, it was found that the same was sub standard and thereafter on 03.05.2016 the petitioner had requested the respondent not to present the cheque until the material was replaced.
3. It is the case of the petitioner that inspite of specific instructions, the respondent has presented the cheque and consequently initiated proceedings under section 138 of the Negotiable Instruments Act. Challenging the same the present petition has been filed.
4. One of the main grounds raised by the petitioner is that notice of dishonour under section 138 of the Negotiable Instruments Act has not been given to the petitioner. According to the petitioner, the sales invoice, as well as his request made on 03.05.2016 in the letter-head, clearly states that his factory address is G-31, Industrial Estate, Ambattur, Chennai - 600058. However, the respondent herein has chosen to send the notice of dishonour to the address at Door No.32, Industrial Estate, Ambattur, Chennai - 600058. When the petitioner has sought for information as to the genuineness of the address mentioned in the notice of dishonour, by letter dated 16.05.2017, the Department of Posts had stated that the article could not be delivered since the Door No.G-32 was not available in Padi and hence it was returned to the sender.
5. Under Section 138 of the Negotiable Instruments Act, the demand on the dishonoured cheque should be given by way of written notice. Such a demand is mandatory. In a case where the drawee of the cheque chooses to send the notice of dishonour to the address in which the petitioner was last residing or last known address, such a notice of dishonour is deemed to be proper notice sent. In the instant case, though the respondent was aware of the petitioner's last known address, he has chosen to send the notice to an address where the petitioner was not residing.
6. This legal preposition has been substantiated by various judgments of this court and as well as other High Courts. One of the Judgments in M/s. Sivasakthi Agencies Vs. Ajit Construction reported in CDJ 2016 MHC 5732, the following observation has been made:-
15. It is pertinently pointed out by this Court that the object of issuance of notice to the drawer of cheque is to prevent unnecessary hardships to a honest Drawer. It is to be remembered that only the real date of service of the Complainant's demand notice in respect of an Accused that give raise to 'cause of action' it an Accused is evading service or deliberately not appearing before the Court coercive measures could be adopted, if a notice was an imperfect or a defective one, in Law,neither a proceedings could be launched under section 138 of the NI Act nor an Accused could be held guilty, as opined by this Court.
16. In fact, the return of a cover by RPAD sent to a wrong address cannot be said to be a deemed service in the eye of Law. Also that the fact that the Respondent/ Accused had not received the notice could only be established by adducing evidence . In this connection, it cannot be brushed aside that 'issuance of notice' in Law is different and ' the receipt of notice' is another. A cursory glance of the ingredients of Section 138 of the NI Act clearly contemplates that 'the Demand should be made by a giving a notice' in writing. It also envisages that there should be failure on the Drawer's part to pay the sum within 15 days from the receipt of notice.
17. The fulfilling of the requirements mentioned in Clause(b) and its aftermath in Clause (c) of Section 138 of the NI Act being a condition precedence for invoking Section 138 of the Act, giving notice to the Drawer before filing the Complaint (under section 138) is mandatory in character. To put it succinctly, the ' service of notice' is quite an imperative one. Admittedly, the proceedings under section 138 of the NI Act are quasi criminal in nature and in nature of coercive measure for 'Breach of Contract' and hence service be effected by way of substituted service by paper publication under the relevant ingredients of the Civil Procedure Code. Also that the notice issued by the complainant by registered post should reach the hands of the addressee himself.
7. From the above judgment, it is seen that the service of notice is mandatory and service to a wrong address cannot be deemed to be proper service of notice of dishonour.
8. In view of the same, the impugned proceedings in STC 533/2016 is vitiated and illegal and the same is liable to be quashed. Accordingly, the case in S.T.C.No.533 of 2016 pending on the file of the learned District Munsif cum Judicial Magistrate, Neyveli is quashed. The Criminal Original Petition stands allowed.