JUDGMENT : CRR No.25/2018 1. The instant Criminal Revision has been preferred against order dated 28.02.2018 passed by the learned Sub Judge (Special Mobile Magistrate, Passenger Tax and Shop Act), Jammu in a complaint No.416/Complaint titled Pawan Jaral vs. Manmohan Krishan Gupta whereby cognizance of a highly defective complaint under Section 138 of Negotiable Instruments Act, has been taken and process against the petitioner has been issued. 2. Brief facts of the case are that the petitioner is a retired official from Insurance Company. He is 65 years of age. He has an account in Punjab National Bank Limited, Bakshi Nagar Branch, Jammu and has obtained a cheque book related to his saving bank account No.1197000104141193. However, the said cheque book was misplaced and when the petitioner after making strenuous efforts to trace the cheque book did not succeed, he immediately approached the said bank and got the cheques of the said cheque book having serial No.458631 onwards, stopped on 15.04.2017 on a written request made by the petitioner. It seems that the respondent has somehow got the cheque bearing no.458633 payment of which stands stopped by the petitioner since 15.04.2017 and after filling his name, amount of Rs.5.00 lac and date as 04.01.2018 presented the cheque to the bank of the petitioner through his banker i.e., J&K Bank Ltd., Canal Road, Jammu. Since the petitioner has already stopped aforesaid cheques since 15.04.2017, therefore, the banker of the petitioner i.e., Punjab National Bank Limited returned the said cheque back to the respondent vide memo dated 05.01.2018 with the remarks “payment stopped by Drawer”. It is further stated that the respondent has filed a criminal complaint under Section 138 of the Negotiable Instruments Act against the petitioner for dishonoring of the aforesaid cheque before the court below. The petitioner appeared before the court below and obtained the copy of the complaint whereby the cognizance has been taken against him. From the perusal of the complaint, it transpires that the aforesaid complaint filed by the respondent is highly defective and based upon totally false and baseless facts. Even the mandatory requirement of service of notice of demand/legal notice has not been served upon the petitioner. The demand notice has been served on wrong address i.e., H.No.227 Bakshi Nagar, Jammu, whereas the correct address of the petitioner is H.No.277, Bakshi Nagar, Jammu; therefore, the notices were defective. Even the mandatory requirement of service of notice of demand/legal notice has not been served upon the petitioner. The demand notice has been served on wrong address i.e., H.No.227 Bakshi Nagar, Jammu, whereas the correct address of the petitioner is H.No.277, Bakshi Nagar, Jammu; therefore, the notices were defective. Accordingly, the petitioner has prayed for quashing of the aforesaid complaint. 3. During the course of arguments, learned counsel for the petitioner has reiterated all the grounds taken in the memo of the petition. The learned counsel for the petitioner has taken two grounds in the petition. The first ground is that the notice has been served to the petitioner on defective address. He has argued that the actual address is H.No.277, Bakshi Nagar, Jammu whereas the address given in the notice is H.No.227 Bakshi Nagar, Jammu. 4. The second ground taken is that the petitioner has informed the bank to stop the payment of the cheques after his cheque book got misplaced, therefore, there was no occasion for the petitioner to issue the cheque in question on 04.01.2018 to the respondent. CRR No.26/2018 5. The instant Criminal Revision has been preferred against order dated 28.02.2018 passed by the learned Sub Judge (Special Mobile Magistrate, Passenger Tax and Shop Act), Jammu in a complaint No.416/Complaint titled Vinod Jaral vs. Manmohan Krishan Gupta whereby cognizance of a highly defective complaint under Section 138 of Negotiable Instruments Act, has been taken and process against the petitioner has been issued. 6. Facts are almost similar to that of first petition except cheque number and name of complainant; the grounds for quashing of complaint are same those have been taken in first petition. 7. I have considered the contentions of petitioner and law on the subject. 8. Procedure for prosecution under Section 138 of NI Act is different from the scheme of Code of Criminal Procedure. Section 138 of NI Act defines an offence and prescribes punishment. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. 9. Section 138 of N.I. Act reads as under :- “138. Dishonour of cheque for insufficiency, etc., of funds in the account. The prosecution is initiated on the basis of a written complaint made by the payee of a cheque. Obviously such complaints must contain the factual allegations constituting each of the ingredients of the offence under Section 138. 9. Section 138 of N.I. Act reads as under :- “138. Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 10. 10. From bare perusal of above section, it is evident that following are the essential ingredients for filing complaint under Section 138 NI Act :- - that a person drew a cheque on an account maintained by him with the banker; - that such a cheque when presented to the bank is returned by the bank unpaid; - that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier; - that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to payee; and - such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid. 11. It is obvious from the scheme of Section 138 of NI Act that each one of the ingredients flows from a document which evidences the existence of such an ingredient. The only other ingredient which is required to be proved to establish the commission of an offence under Section 138 of NI Act is that in spite of the demand notice referred to above, the drawer of the cheque failed to make the payment within a period of 15 days from the date of the receipt of the demand. A fact which the complainant can only assert but not prove the burden would essentially be on the drawer of the cheque to prove that he had in fact made the payment pursuant to the demand. 12. Once a complainant states in complaint that he has complied the provisions of section 138 of N.I. Act, which are supported with documentary evidence, then all the defences which accused takes, can be considered during course of trial. 13. In present case, this fact has been admitted by petitioner that he was holder of A/C No.1197000104141193 in Punjab National Bank Limited, Bakshi Nagar Branch, Jammu and has obtained a cheque book related to his saving bank account; it is also a fact that both cheques in dispute bearing number 458633 dated 04/01/2018 for Rs.five lakh; and 458632 dated 11/01/2018 for Rs. five lakh have been issued from cheque book of A/C no.1197000104141193; it is also admitted fact that both cheques bear signatures of the petitioner. 14. Both the cheques when presented before bank of complainants in Jammu and Kashmir Bank Branch Canal Road, Jammu, the bank dishonored the same on 5.1.2018/12.01.2018 respectively with memos that PAYMENT STOPPED BY DRAWER. Complainants thereafter issued demand notice to petitioner, on address as H.NO. 227 opposite Gurdawara Bakshi Nagar, Jammu. But petitioner did not pay the amount despite the receipt of demand notice within stipulated time in terms of section 138 of N.I. Act. 15. First ground taken is that address of petitioner is not H.NO. 227 Opposite Gurdawara Bakshi Nagar, Jammu, but is H.NO. 277 Opposite Gurdawara Bakshi Nagar, Jammu. In support of this argument, learned counsel has cited case titled Mohammed Farooque Shahdat Vs. Kantaben G. Savalia and Ors., reported 2007 (1) Bom. C.R. (Cri.) 992; and case titled Amzad Pasha v H.N. Lakshmana reported in 2011 Cr.L.J. 552, wherein it is held that where address on demand notice is not correct, the conviction cannot be based upon it. 16. I have gone through this aspect of the matter. This contention is not applicable at this stage, because it is a fact, which petitioner has to establish before court below during trial. The citations are also not applicable, because these are pertaining to acquittal after full trial. 17. Similarly another argument advanced by the counsel for petitioner is that his cheque book of A/C No.1197000104141193 of Punjab National Bank Limited, Bakshi Nagar Branch, was misplaced and when after making strenuous efforts to trace the cheque-book did not succeed, he immediately approached the said bank and got the cheques of the said cheque book having serial No. 458631 onwards, stopped on 15.04.2017 on a written request made by the petitioner. It has further been argued that it seems that the respondents have somehow got the cheques bearing no.458633/458632 payment of which stands stopped by the petitioner since 15.04.2017 and after filling their names, amount of Rs.5.00 lac each and date as 04.01.2018/11.01/2018 respectively presented the cheques to the bank of the petitioner through his banker i.e., J&K Bank Ltd., Canal Road, Jammu. 18. These arguments are without any force, because no one will keep whole of his cheque book already signed. 18. These arguments are without any force, because no one will keep whole of his cheque book already signed. It is not the case of petitioner that cheques in question do not bear his signature. 19. Section 118 of NI Act reads as under :- “118. Presumptions as to negotiable instruments. —Until the contrary is proved, the following presumptions shall be made:— (a) of consideration —that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date —that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance —that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer —that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements —that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps —that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course —that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.” 20. Section 139 of the Negotiable Instruments Act, 1881 reads as under :- “139. Presumption in favour of holder.—It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.]” 21. Under section 139 of the Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted only by the person who drew the cheque. The aforesaid presumption is in favour of the holder of cheque. 22. Under section 139 of the Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted only by the person who drew the cheque. The aforesaid presumption is in favour of the holder of cheque. 22. The presumption under section 139 can be rebutted by the accused only by adducing evidence. So the burden of proof is on the accused and the evidence available or record will have to be appreciated by bearing in mind the above fact regarding burden of proof. 23. Section 118 of the NI Act inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. The said presumptions are rebuttable in nature. 24. In Rangappa V. Sri Mohan, (2010) 11 SCC 441 , a three judge bench of the Apex Court, has observed that, Section 139 of the NI Act is stated to be an example of a reverse onus clause which is in tune with the legislative intent of improving the credibility of negotiable instruments. The Hon'ble Supreme Court observed that the offence under Section 138 of the NI Act is at best a regulatory offence and largely falls in the arena of a civil wrong and therefore the test of proportionality ought to guide the interpretation of the reverse onus clause. An accused may not be expected to discharge an unduly high standard of proof. A reverse onus clause requires the accused to raise a probable defence or creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof for doing so would necessarily be on the basis of "preponderance of probabilities" and not "beyond shadow of any doubt. 25. In this way, petitioner is at liberty to rebut the fact of service of demand notice on wrong address and that his cheque book was lost, so he does not own any debt liability against the respondents/complainants, before trial Court. 26. In view of above, both these petitions are dismissed. Stay, if any, is vacated.