Valid service of demand notice under Section 138 NI Act requires delivery to drawer; receipt by unrelated person does not fulfill precondition, rendering complaint not maintainable without cause of action.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Cr.P.C. with the prayer to quash order dated 23.05.2023 passed in Criminal Revision No. 315 of 2022 whereby and whereunder the learned Sessions Judge, East Singhbhum, Jamshedpur dismissed the revision application and affirmed the order dated 14.12.2022 passed in C/1 Case No. 7617 of 2022 by the learned Judicial Magistrate, 1st Class, Jamshedpur whereby and whereunder the learned Judicial Magistrate dismissed the complaint filed by the petitioner as not maintainable.

3. The brief fact of the case is that the petitioner being the complainant filed C/1 Case No. 7617 of 2022 alleging commission of the offence punishable under Section 138 of N.I. Act by the Opposite Party Nos. 2 & 3 of this Cr.M.P. It is the case of the complainant that the Opposite Party Nos. 2 & 3 issued three different post-dated cheques to the petitioner-complainant and the said cheques being presented to the bank, the same were dishonoured due to payment stopped instruction given by drawer to their banker. The complainant sent legal notice through an advocate on 21.11.2022 through speed post. Notice was received by the accused on 23.11.2022, but the Opposite Party Nos. 2 & 3 did not reply to the notice. The learned Judicial Magistrate, 1st Class, Jamshedpur considered that as per the tracking report of the notice sent to the Opposite Party Nos. 2 & 3, the item was not exactly delivered to the address of the accused, as though as per the notice, address of the accused was in Kashidih, the tracking report showed that the delivery confirmed on 23.11.2022 at Jamshedpur H.O. shows that delivery not confirmed to the mentioned address of the accused and because of improper delivery of the notice the complaint was not maintainable and dismissed the same.

4. Being aggrieved by the order dated 14.12.2022 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in C/1 Case No. 7617 of 2022, the petitioner filed Criminal Revision No. 315 of 2022 in the Court of learned Sessions Judge, East Singhbhum, Jamshedpur. The learned Sessions Judge after going through the Trial Court Record found that the admitted fact of the complainant is that the demand notice dated 21.11.2022 was sent to M/s Jai Sai Nath Engineering (P) Ltd., and its director Pankaj Tiwari, at Tiwari Sadan 250, Kashidih, Sakchi, but the address of the Opposite Party Nos. 2 & 3 is at Bengonia Block No. 43, Flat No. 4372, Vijaya Garden, Baridih, Club House, Baridih Colony, East Singhbhum, Jharkhand, 831017 and thus, there was no valid service of notice, demanding payment of the cheque amount upon the Opposite Party Nos. 2 & 3 which is a pre-condition to be fulfilled before filing of the complaint. Having not complied with demanded to the condition of demanding the cheque amount, there was no valid cause of action for filing the complaint, and as, the same having been rightly dismissed by the learned JMFC, Jamshedpur for being not maintainable, the learned Sessions Judge dismissed the criminal revision as well.

5. The learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of K. Bhaskaran V. Sankaran Vaidhyan Balan reported in AIR 1999 SC 3762 wherein the Hon’ble Supreme Court of India has held that the basic ingredients to fulfil under section 138 are as under: -

“The offence under Section 138 of the Act can be completed only with the concatenation of a number of acts. Following are the acts which are components of the said offence: (1) Drawing of the cheque, (2)