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2018 DIGILAW 664 (JK)

Farooq Ahmad Wani v. Ramesh Kumar

2018-08-29

M.K.HANJURA

body2018
JUDGMENT : M.K. HANJURA, J. 1. Aggrieved by the Order dated 21.07.2017 of the Learned Judicial Magistrate 1st Class, Baramulla, passed in the complaint titled Ramesh Kumar v. Farooq Ahmad Wani filed under Section 138 of the Negotiable Instrument Act, the petitioner has assailed the same in this petition moved under Section 561-A of the Code of Criminal Procedure (CrPC), on the grounds, inter alia, that the trial Court had no jurisdiction to take cognizance in the matter as the parties resided outside the valley and the complaint came to be filed at Baramulla, whereas, the cheque has been drawn at Sopore. It is also contended that it is mandatory to issue a Legal notice of demand calling upon the drawer of the cheque to make the payment within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and it is within a period of one month from the date of the expiry of this period of 15 days that a complaint can be filed as postulated and provided under section 142 (b) of the Act but the same is not the case here and accordingly the learned Judicial Magistrate could not have taken the cognizance of the matter. In the end it has been urged that the complaint as well as the order dated 21.07.2017 passed by the Trial Court are liable to be quashed and, therefore, the same be set aside. 2. Heard and considered. 3. In the end it has been urged that the complaint as well as the order dated 21.07.2017 passed by the Trial Court are liable to be quashed and, therefore, the same be set aside. 2. Heard and considered. 3. The rider added to Section 138 (C) of the Act provides as under:- Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of three 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, [within fifteen 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. 4. The law is that a complaint under section 138 of the Act must contain the following ingredients, viz. (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; (iii) cheque so issued had been returned due to insufficiency of funds. In Section 138 of the Act Legislature has clearly stated that for the dishonoured cheque the drawer shall be liable for conviction if the demand is not met within 15 days of the receipt of notice but this is without prejudice to any other provision of the Act. If the cheque amount is paid within the above period or before the complaint is filed the legal liability under section 138 of the Act will cease and for the recovery of other demands as compensation costs, interest etc., a civil proceedings will lie. Therefore, if in a notice any other sum is indicated in addition to the "said amount" the notice cannot be faulted. 5. Therefore, if in a notice any other sum is indicated in addition to the "said amount" the notice cannot be faulted. 5. Looking at the complaint of the complainant from the above perspective the petitioner in this petition i.e. the accused before the trial Court has taken two exceptions to the order passed by the learned trial Court, first, that the complaint is hit by limitation and the second, that the trial Court lacked the jurisdiction to try the complaint. Both these arguments appear to be spurious and fallacious when tested on the touchstone of law. 6. The complainant has attached the original cheque, original Memo returning the cheque, the copy of the notice bearing No. L.N-03ZAL2017, Dated: 09/06/2017 and the original receipt of the postal authorities to the complaint. The petitioner herein issued the cheque in question in favour of B. Thanwardas and Co. for an amount of Rs. 8.00 lacs of which the respondent herein is the attorney holder. He presented the same before the J&K Bank, Office TP Baramulla, and it was returned due to the insufficiency of the funds in the account of the petitioner. It was returned on 16.05.2017. The notice of demand was sent to the petitioner on 09.06.2017 under registered cover. 7. The cause of action for filing a complaint under section 138 of the Act arises after the completion of the period of 15 days from the date the drawer receives notice and fails to pay the amount within that period. The petitioner did not respond to the notice nor did he liquidate his liability to pay an amount of Es. 8.00 lacs as was due to be paid by him. The complainant filed the complaint before the trial Court on 21.07.2017. The period of notice of 15 days expired on 24th of June 2017 but the crucial point to be decided and determined in the petition is when and on what day did the drawer receive the notice. This has not been detailed and specified in the complaint which came to be filed on 21.07.2017. However, this aspect can be looked into and probed by the trial Court during the examination of the witnesses more particularly the person who delivered the registered cover containing the notice to the drawer where after it shall return a finding as to whether the complaint is, or is not, time barred. 8. However, this aspect can be looked into and probed by the trial Court during the examination of the witnesses more particularly the person who delivered the registered cover containing the notice to the drawer where after it shall return a finding as to whether the complaint is, or is not, time barred. 8. Looking at the petition of the petitioner from another perspective that is, the element of jurisdiction Sub-Section (2) of Section 142 of the Act reads as under:- (2) The offence under section 138 of the Act, shall be inquired into and tried only by a court within whose local jurisdiction,- (a) If the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. 9. Testing the instant case on the strength of the above the cheque was delivered for collection through an account in the Branch of the Bank where the payee maintained the account i.e. the J&K Bank, Branch TP Baramulla, and it was returned to him for want of the insufficiency of funds. Therefore, on the analogy of what is stated in Section 142 Sub-Section 2 of Negotiable Instrument Act the trial Court at Sopore did not lack the jurisdiction to take cognizance in the matter. 10. In view of the above, the petition of the petitioner sans merits. It entails dismissal and, is accordingly dismissed leaving it open for the trial Court to decide whether the complaint is, or is not, time barred, on the analogy of what has been said herein before.