NEERAJ KOTWAL vs PAWAN KUMAR SHARMA

No representation on behalf of the respondent (complainant) today. There had been no representation on his behalf on the previous date too.Â

Heard learned counsel for the petitioner.Â

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.Â

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.Â

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.Â

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).Â

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

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

Disposed of.