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Jammu & Kashmir High Court

Neeraj Kotwal vs Pawan Kumar Sharma on 26 March, 2018

                     HIGH COURT OF JAMMU AND KASHMIR
                                AT JAMMU
Pet. u/s 561-A No. 19/2018
MP No. 01/2018

                                                                Date of order: 26.03.2018
Neeraj Kotwal                               vs                        Pawan Kumar Sharma
Coram:

            Hon'ble Mr. Justice Janak Raj Kotwal, Judge
Appearance:


For the appellant/petitioner(s)   :   Mr. Ankush Manhas, Adv.
For the respondent(s):                None.

1. No representation on behalf of the respondent (complainant) today.

There had been no representation on his behalf on the previous date too.

2. Heard learned counsel for the petitioner.

3. This petition filed under section 561-A Cr.P.C. seeks quashing of the complaint filed under section 138 of the Negotiable Instruments Act, 1881 (for short the Act) by the respondent (complainant) against the petitioner (accused) in the court of learned Judicial Magistrate 1st Class (Munsiff) Badharwah, Jammu and the order dated 23.05.2016, whereby learned Magistrate after taking cognizance has issued process against the petitioner for proceeding against him.

4. Learned counsel for the petitioner submitted that the impugned compliant is not maintainable as neither statutory notice as required under proviso to section 138 of the Act was issued nor the complaint has been filed within statutory period provided under section 142.

5. The impugned complaint on its plain reading and record on the trial court file would show that the memo refusing payment against the cheque due to insufficient funds in the account was issued by the bank of 11.01.2016. The notice calling upon the drawer (accused) to make payment against the refused cheque within 15 days was issued by the payee on 07.05.2016, that is, much after expiry of 30 days from the date of refusal of the cheque. The complaint was filed on 23.05.2016. Notice dated 07.05.2016, copy whereof has been produced, shows that earlier a similar notice was issued through Mr. Manish Dutt, Advocate but the petitioner (accused) had deceitfully managed to get the said notice returned by the postal authorities. A copy of the notice said to have been issued through Mr. Manish Dutt, Adv. is also lying on record of the trial court but the same is without any date of its issue. Date of such notice, if any, has not been given in the complaint also.

6. What is, thus, clear is that the statutory notice, as required under clause (b) of proviso to section 138 of the Act on the basis whereof complaint has been filed was issued much beyond expiry of 30 days. The respondent (complainant) indisputably did not file any complaint on the basis of first notice, if any. Second notice was not permissible so the compliant could not have been filed in view of the bar contained in clause

(b) of proviso to section 138 of the Act. (See Sadanandan Bhadran v Madhavan Sunil Kumar, AIR 1998 SC 3043). Learned Magistrate has, thus, fallen in error by taking cognizance in the compliant and issuing process against the petitioner (accused).

7. Viewed thus, the impugned complaint and the entire proceedings therein are quashed.

8. Record of the trial court along with a copy of this order be sent back.

9. Disposed of.

(Janak Raj Kotwal) Judge Jammu:

26.03.2018 Rakesh Pet. u/s 561-A No. 19/2018 Page 3 of 3