The central legal point established in the judgment is the requirement of physical service of legal notice on the correct address for dishonour of cheque under Section 138 of the NI Act.

Mukta Gupta, J.

1. A complaint under Section 138 of the Negotiable Instruments Act (in short NI Act) was filed by the respondent against the petitioner as proprietor of Vashisht Transport Company being criminal complaint No.384/2006. In the complaint respondent alleged that the petitioner subscribed to a chit fund group and took payment for a bid through cheque after deducting the bid amount. After some payments in installments were made the petitioner became irregular in making the payments of the installments towards the chit fund. In order to discharge his liability, the petitioner issued cheque bearing No.645580 dated 14th September, 2006 for Rs. 5,47,740/- drawn on Indian Overseas Bank in favour of the complainant with the assurance that the same would be honoured on presentation. When the cheque was presented the same was dishonored with the remark ‘account closed’ vide memo dated 21st September, 2006. Thus the respondent issued a legal notice dated 16th October, 2006 under Registered AD and UPC. The notice sent through UPC had been duly served on the petitioner, however notice sent through registered AD has not been received back. Despite service of notice since the petitioner did not pay the amount nor replied, he had committed offence punishable under Section 138 NI Act.

2. The case of the petitioner is that no summons were served on him and that no legal notice was served on him as the same was sent on a fictitious and non-existent address at C-16, Amushi Industrial Area, Nandur Gant, Lucknow, UP. Thus the ingredients of offence punishable under Section 138 NI Act not being fulfilling the complaint was liable to be quashed.

3. On 2nd January, 2007 summons were issued to the petitioner on the allegations of the respondent as aforesaid. On 18th November, 2007 the process server HC Bhag Mal Singh submitted his report that there was no property with the number C-16 in the Amushi Industrial Area, Lucknow, UP, and summons could not be served. Thus the learned Metropolitan Magistrate on 21st November, 2007 directed the respondent to furnish fresh address and issued fresh summons. On the next date i.e. 2nd June, 2008 the learned Trial Court noted that the respondent had not complied with the order, however the order sheet noted presence of the accused. Learned counsel for the petitioner submits that someone was brought to impersonate as an accused to mislead the Court. Neither the vakalatnama of the alleged Advocate was placed on record nor who appeared is clear. On 2nd May, 2009 the learned PO was on leave. Thus the learned Link Magistrate fixed the matter for consideration on the issue of territorial jurisdiction for 22nd May, 2009 as both the cheque and the accused arrayed were not of Delhi.

On 3rd June, 2009 the learned Metropolitan Magistrate proceeded to issue non-bailable warrants against the petitioner returnable for 15th November, 2010. The petitioner discovered that two other complaints were pending titled as ‘Sri Ram Investment and Finance Company Vs. Gajender Sharma’. However, no files could be located as the same were transferred. The petitioner had no knowledge of the case, however an application for inspection of the judicial file was moved when it was revealed that the address of the petitioner provided in the notice and the complaint were fictitious.

4. Challenging the order dated 2nd January, 2007 summoning the petitioner and the order dated 3rd June, 2009 issuing non-bailable warrants against the petitioner and also seeking quashing of the proceedings in the above-noted complaint under Section 138 NI Act, the petitioner filed a revision petition before the learned ASJ which was decided by the impugned order dated 12th October, 2010.

5. Vide the impugned order though the learned Additional Sessions Judge set aside the non-bailable warrants issued against the petitioner, however declined to set aside the summoning order and quash the complaint. Relevant portion of the impugned order is as under:-

“6. Any