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2018 Supreme(J&K) 821
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SANJAY KUMAR GUPTA, J.
Manmohan Krishan Gupta - Appellant
Vs.
Pawan Jaral - Respondent
CRR No. 25 of 2018 c/w CRR No. 26 of 2018 & IA No. 1 of 2018
Decided On : 21-12-2018
Advocate Appeared:
For the Appellant :Mr. Vaibhav Gupta, Advocate.
The burden of proof is on the accused to rebut legal presumptions under Section 138 of the NI Act.
Headnote:
Negotiable Instruments Act - Defective Complaint - Section 138 - 138 NI Act
Fact of the Case:
The petitioner, a retired official, had a cheque book misplaced and stopped the payment of cheques. The respondent filed a complaint under Section 138 of the Negotiable Instruments Act for dishonoring a cheque. The petitioner sought quashing of the complaint on the grounds of defective notice and no occasion for issuing the cheque.
Finding of the Court:
The court considered the essential ingredients for filing a complaint under Section 138 of the NI Act and the burden of proof on the accused to rebut legal presumptions. The court dismissed the petitions and vacated any stay.
Issues: Defective complaint, incorrect address on notice, loss of cheque book, and burden of proof on the accused.
Ratio Decidendi: The court emphasized the essential ingredients for filing a complaint under Section 138 of the NI Act and the rebuttable nature of legal presumptions. The burden of proof is on the accused to raise a probable defense or create doubt about the existence of a legally enforceable debt or liability.
Final Decision: Both petitions were dismissed, and any stay was vacated.
CRR No.25/2018
1. The instant Criminal Revision has been preferred against order dated 28.02.2018 passed by the learned Sub Judge (Special Mobile Magistrate, Passenger Tax and Shop Act), Jammu in a complaint No.416/Complaint titled Pawan Jaral vs. Manmohan Krishan Gupta whereby cognizance of a highly defective complaint under Section 138 of Negotiable Instruments Act, has been taken and process against the petitioner has been issued.
2. Brief facts of the case are that the petitioner is a retired official from Insurance Company. He is 65 years of age. He has an account in Punjab National Bank Limited, Bakshi Nagar Branch, Jammu and has obtained a cheque book related to his saving bank account No.1197000104141193. However, the said cheque book was misplaced and when the petitioner after making strenuous efforts to trace the cheque book did not succeed, he immediately approached the said bank and got the cheques of the said cheque book having serial No.458631 onwards, stopped on 15.04.2017 on a written request made by the petitioner. It seems that the respondent has somehow got the cheque bearing no.458633 payment of which stands stopped by the petitioner since 15.04.2017 and after filling his name, amount of Rs.5.00 lac and date as 04.01.2018 presented the cheque to the bank of the petitioner through his banker i.e., J&K Bank Ltd., Canal Road, Jammu. Since the petitioner has already stopped aforesaid cheques since 15.04.2017, therefore, the banker of the petitioner i.e., Punjab National Bank Limited returned the said cheque back to the respondent vide memo dated 05.01.2018 with the remarks “payment stopped by Drawer”. It is further stated that the respondent has filed a criminal complaint under Section 138 of the Negotiable Instruments Act against the petitioner for dishonoring of the aforesaid cheque before the court below. The petitioner appeared before the court below and obtained the copy of the complaint whereby the cognizance has been taken against him. From the perusal of the complaint, it transpires that the aforesaid complaint filed by the respondent is highly defective and based upon totally false and baseless facts. Even the mandatory requirement of service of notice of demand/legal notice has not been served upon the petitioner. The demand notice has been served on wrong address i.e., H.No.227 Bakshi Nagar, Jammu, whereas the correct address of the petitioner is H.No.277, Bakshi Nagar, Jammu; therefore, the notices were defective. Accordingly, the petitioner has prayed for quashing of the aforesaid complaint.
3. During the course of arguments, learned counsel for the petitioner has reiterated all the grounds taken in the memo of the petition. The learned counsel for the petitioner has taken two grounds in the petition. The first ground is that the notice has been served to the petitioner on defective address. He has argued that the actual address is H.No.277, Bakshi Nagar, Jammu whereas the address given in the notice is H.No.227 Bakshi Nagar, Jammu.
4. The second ground taken is that the petitioner has informed the bank to stop the payment of the cheques after his cheque book got misplaced, therefore, there was no occasion for the petitioner to issue the cheque in question on 04.01.2018 to the respondent.
CRR No.26/2018
5. The instant Criminal Revision has been preferred against order dated 28.02.2018 passed by the learned Sub Judge (Special Mobile Magistrate, Passenger Tax and Shop Act), Jammu in a complaint No.416/Complaint titled Vinod Jaral vs. Manmohan Krishan Gupta whereby cognizance of a highly defective complaint under Section 138 of Negotiable Instruments Act, has been taken and process against the petitioner has been issued.
6. Facts are almost similar to that of first petition except cheque number and name of complainant; the grounds for quashing of complaint are same those have been taken in first petition.
7. I have considered the contentions of petitioner and law on the subject.
8. Procedure for pros
