1. The petition under Section 561-A Cr. P.C. in hand, is directed against the order dated 29th of December, 2007 passed by Sessions Judge, Pulwama in a revision petition, for short the impugned order.

2. Respondent, Ghulam hassan Ganai, complainant, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, for the short the Act, before the Judicial Magistrate First Class, (Sub-Judge), Pulwama on 7th of December, 2005. The trial court has drawn the cognizance and issued process vide order dated 7th of December, 2005.

3. Petitioner-accused appeared and filed application for dropping the proceedings-came to be granted vide order dated 30th of November, 2006 and complaint came to be dismissed. Feeling aggrieved, complainant-respondent filed a revision petition before the court of Sessions Judge, Pulwama-came to be allowed vide order dated 29th of December, 2007 with the command to the trial court to try the complaint and take it to its logical conclusion. The said order is the subject matter of this petition.

4. It is alleged in the complaint that accused-Bashir Ahmad Mir, borrowed a handsome amount from the complainant in order to enable him to supply delicious fruits but the accused committed a breach and thereafter accounts came to be settled and Rs. 50,000/- were found outstanding/ liability/ debt against the accused who issued cheque No.1130238 dated 25th of April, 2005 for the said amount. Complainant deposited the cheque in Jammu & Kashmir Bank, Branch Drabgam but was returned back on 31st of October, 2005 with the report "account not renewed". Cheque and memo are appended with the complaint. A notice dated 12th November, 2005 came to be issued by the complainant to the accused about bouncing of the cheque and demand of payment of money within 15 days from the date of receipt of notice but accused failed to make payment.

5. It appears that cheque came to be issued on 25th of April, 2005 and came to be presented before the bank for encashment on 25th of October, 2005 and came to be returned along with memo as bounced on 31st October, 2005.

6. Learned counsel for the petitioner argued that the proceedings drawn, cognizance taken and process issued is abuse of the process of law on the following counts;

that notice came to be issued after 15 days; and

cheque came to be presented after period of six months.

7. Both the arguments of learned counsel for the petitioner are not tenable for the following reasons.

It appears that legal notice came to be issued by one Reyaz Hussain Qadiri to the accused on 12th of November, 2005 and came to be posted on 14th of November, 2005. The cheque came to be returned on 31st of October, 2005 as bounced. Thus, prima facie it appears that notice came to be issued within time frame as per the mandate of Section 138 of the Act.

8. The question that cheque was not presented within six months was neither raised by the accused before the trial court nor before the revisional court. However, it is a legal issue and I deem it proper to thrash it out. It is apt to reproduce Section 138 of the Act herein:-

"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 [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) t

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