Bashir Ahmad Mir vs Ab.Ahmad Ganai

Petitioner has invoked jurisdiction of this court for quashing order dated 29122007 passed by Sessions Judge, Pulwama, in a revision petition

titled Abdul Ahad Ganai Vs. Bashir Ahmad Mir, setting aside the order dated 30112006 passed by Judicial Magistrate (SubJudge), Pulwama, on

the grounds taken in the petition.

It appears that Abdul Ahad Ganai, complainant/respondent filed a complaint under section 138 of the Negotiable Instrument Act (for short the

Act) before the Judicial Magistrate, (SubJudge), Pulwama. Preliminary statements of the complainant and two witnesses came to be recorded,

cognizance drawn and process issued against the alleged accused namely Bashir Ahmad Mir. Bashir Ahmad Mir/petitioner appeared and filed an

application before the trial court for dropping of the proceedings and for dismissal of the complainant. The application, caine to be allowed vide

order dated 30112006 and the complaint came to be dismissed. Feeling aggrieved, the complainant Abdul Ahad Ganai filed a revision petition

before the learned Sessions Judge which came to be allowed vide order dated 29122007.

Heard learned counsel for the parties at length and considered the matter. After considering the matter in its entirety, I am of the considered

view that the order passed by learned Sessions Judge, Pulwama is illegal, erroneous and suffers from nonapplication of mind for the following

reasons.

In order to maintain a complaint under section 138 of the Act, the complaint must fulfill among others, the following Ingredients:

a)...................

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 thirty days) of the receipt of the information by him from the bank regarding the

return of the cheque as unpaid.

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.

The complainant has to annex prima facie proof with the complainant that notice came to be issued on the correct postal address and served

upon the alleged accused. If the complainant fails to annex any prima facie proof with the complaint, then cognizance cannot be drawn and process

cannot be issued. Apex court in case C.C. Alvi Haji Vs Palapetty Muhammad & Anr., 2007 AIR SCW 3578, held that pre requirement of giving

notice to drawer of cheque is mandatory. The aim and object of such requirement is to avoid unnecessary hardship to an honest drawer. Further it

is observed and held that notice is to be sent by registered post by correctly addressing the drawer of the cheque and if it is done, mandatory

requirement of issue of notice in terms of clause (b) of proviso of Section 138 of the Act is complied with. It is apt to reproduce relevant portion of

para 5 of the judgment hereunder:

As noted above, the controversy arises in the context of service of notice in terms of Section 138 of the Act. The conditions pertaining to the

notice to be given to the drawer have been formulated and incorporated in Clauses (b) and (c) of the proviso to Section 138 of the Act, which &

read as follows: Provided that nothing contained in this section shall apply unless:

a) ...................

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 thirty days) of the receipt of the information by him from the bank regarding the

return of the cheque as unpaid.

c) The drawer of the 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.

Apex court in another case titled Sarav Investment and Financial Consultants Pvt. Ltd. and Anr. V. Llyods Register of Shipping Indian Officer

Staff Provident Fund and Anr. 2007 AIR SCW 6482, has held that service of demand notice is a part of cause of action for lodging complaint and

it is mandatory in character. It is profitable to reproduce para 18 of the said judgment hereunder:

The notice, was only required to be dispatched. Its contents were required to be communicated. Communication to the appellant about the

fact of dishonouring of the cheques and calling upon him to pay the amount within 15 days is imperative in character. It is not a case, where, actual

communication was not necessary. Service of notice is a part of cause of action for lodging the complaint.

The apex court observed that unless a notice is served in conformity with proviso (b) appended to Section 138 of the Act, the complaint would

not be maintainable. Applying the test as laid down by the apex court to the instant case, and while keeping in view the mandate of Section 138 of

the Act, it is to be seen and determined whether notice of demand came to be issued and served to the petitioneraccused.

It is mentioned in the complaint that a demand notice came to be issued on 12112005, but there is nothing on the file suggesting the fact that said

notice was dispatched on the correct address and was sent to the accused. The complainant has annexed a photo copy of the receipt of the post

office which indicates that notice or something came to be sent by post to one Ghulam Hassan Sheikh R/O Kenigam, Budgam and that too on

29112005, who is not accused and against whom no complaint has been filed. In the given circumstances, how can it be said that demand notice

was sent to Bashir Ahmad Miraccused/petitioner. On this ground alone, the impugned order passed by learned Sessions Judge merits to be set

aside. Order accordingly. However, it is made clear that order of dismissal of the complaint shall not come in the way of the complainant from

seeking appropriate remedy from appropriate forum, if any available under law.