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2009(2) Bankmann 240 (J&K)
JAMMU AND KASHMIR HIGH COURT
Mansoor Ahmad Mir, J.
Bashir Ahmad Mir –Petitioner
versus
Abdul Ahmad Ganai –Respondent
Petition under Section 591-A of Act No. 9 of 2008
Decided on 5-11-2008
Counsel for the Parties:
For the Petitioner:Mr. A. Haqani, Advocate.
For the Respondent:Mr. M.Y. Bhat, Advocate.
IMPORTANT POINT
Service of notice under Section 138(b), N.I.A. is a part of the cause of action for filing complaint under Section 142, N.I.A.
Headnote:Negotiable Instruments Act, 1881—Section 138—Cheque dishonoured—Section 142—Accused summoned—Trial Court dropped proceedings and dismissed complaint—Revisional Court set aside “dismissal of complaint”—Petition for quashment of the revised order. Held: Notice under Section 138 (b), N.I.A. was not served upon the drawer-petition—Complaint was neither maintainable nor sustainable in the eyes of law—Petition is allowed—Impugned order is set aside. (Paras 2 and 9)
Mansoor Ahmad Mir, J.—Petitioner has invoked jurisdiction of this Court for quashing order dated 29.12.2007 passed by Sessions Judge, Pulwama, in a revision petition titled Abdul Ahmad Ganai, v. Bashir Ahmad Mir, setting aside the order dated 30.11.2006 passed by Judicial Magistrate (Sub-Judge), Pulwama, on the grounds taken in the petition.
2. It appears that Abdul Ahmad Ganai, complainant/respondent filed a complaint under Section 138 of the Negotiable Instruments Act (for short ‘the Act’) before the Judicial Magistrate, (Sub-Judge), 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 complaint. The application came to be allowed vide order dated 30.11.2006 and the complaint came to be dismissed. Feeling aggrieved, the complainant Abdul Ahmad Ganai filed a revision petition before the learned Sessions Judge which came to be allowed vide order dated 29.12.2007.
3. Heard learned Counsel for the parties at length and considered the matter.
4. 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 non-application of mind for the following reasons.
5. In order to maintain a complaint under Section 138 of the Act, the complaint must fulfil 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.
6. 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 v. Palapetty Muhammad and Anr.1, 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 cheques 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.”
7. Apex Court in another case titled M/s.
