 If legal notice was not served to the accused then 138

will not attract.

 In Rajiv Kumar v. State of U.P, [1991]

Crl. LJ 3010; [1993] 78 Comp Cas 507 (Allahabad High Court),

Where it was held that when there is no proof of service of notice the complaint under section
138 is not maintainable, the case in hand is not a case of absence of proof of service of notice.
Here is a plea of non-receipt of notice which has been belied by the complainant by
production of a postal acknowledgment due containing the signature of the petitioner.

“In the absence of any proof that the notice under Section 138(b) of the Act was
served on the accused/opposite party, there was no justification in prosecuting the
accused/opposite party for offence under Section 138(c) of the Negotiable Instruments
Act. Since the petitioner admitted having business relations with the opposite party
and the provisions of Section 138(c) of the Act are not complied with and the order
dated July 23, 1990, dismissing the second complaint also under Section 203 of the
Criminal Procedure Code, which became final. I do not find any circumstance to
interfere under Section 482 of the Criminal Procedure Code”.

 Harish C. Chadda and Anr. vs Xs Financial Services Ltd.

on 9 January, 2001
Equivalent citations: 2001 107 Com Cas 169 Madras High Court.

When no notices have been issued, the petitioners had no opportunity for making payment of
the amount as demanded by the respondent/complainant in the notice. Therefore, the
complaint against the petitioners is not sustainable and is liable to be rejected. In this
connection, learned Counsel would rely upon a judgment of this Court made in Crl. O.P. No.
9530 of 1998, dated July 7, 1999, wherein this Court quashed the complaint against the
accused who were not served with the notices under Section 138(b) of the Negotiable
Instruments Act, hereinafter called "the Act".