The correct service of statutory notice of demand, including sending it to the correct address of the drawer of the cheque, is essential for establishing the pre-condition for filing a complaint under section 138 of the NI Act.

JUDGMENT :

1. The petitioner has challenged the complaint filed by the respondent against him for offence under Section 138 of Negotiable Instruments Act (hereinafter for short "the NI Act") before the Court of Judicial Magistrate, 1st Class (3rd Additional Munsiff), Srinagar. The petitioner has also challenged order dated15.04.2015, whereby the learned Magistrate has, after taking cognizance of the offence, issued process against the petitioner.

2. It appears that the respondent has filed a criminal complaint for offence under section 138 of the NI Act against the petitioner before the trial Magistrate alleging that the petitioner had issued a cheque Bearing No.33201209, dated 12.02.2015 for an amount of Rs. 22,89,500/-. The cheque was drawn on J&K Bank Branch Ltd. In favour of the complainant and when the same was presented for payment before the bank, it was returned unpaid for insufficiency of funds. The respondent/complainant is stated to have served a statutory legal notice of demand upon the petitioner but despite receipt of the same, the petitioner failed to make the payment within the statutory period and as a consequence of this, the respondent filed the impugned complaint against the petitioner before the learned trial Magistrate, who, vide the impugned order dated 15.04.2015, took cognizance of the offence and observed that, prima facie, offence under section 138 of the NI Act is made out against the petitioner. Accordingly, process was issued against the petitioner.

3. The only ground urged by the petitioner for challenging the impugned complaint and the order of taking cognizance is that statutory notice of demand has not been served upon him, inasmuch as the address on which the respondent has dispatched the said notice is incorrect to the knowledge of the respondent. It is contended that the petitioner is a resident of Delhi but the notice of demand has been dispatched by the respondent/complainant on a wrong address at Jammu. Thus, according to the petitioner, without service of statutory notice of demand upon him, it cannot be stated that the offence under section 138 of the NI Act is made out against him. It is urged that the learned trial Magistrate has not taken note of this aspect of the matter and passed the impugned order dated 15.04.2015 which is liable to be set aside.

4. I have heard learned counsel for the parties and perused the material on record.

5. In the notice of demand dated 17.02.2015 address of the petitioner has been shown as under:-

I) Engineering Control, through its Proprietor,

Shah Ji Koul,

S/o Surrender Nath Koul,

R/o 58 Priyag Apartment,

Vasundhara Enclave-96 Jammu, J&K

II) Anand Prabat

New Delhi

6. A perusal of the impugned complaint also shows that address of the petitioner/accused has been shown as resident of 58-Priyag Apartment, Vasundhara Enclave-96, Jammu. When the process was issued by the learned trial Magistrate against the petitioner/accused, the same could not be served upon him because of the wrong address. The trial court record shows that the respondent/complainant moved an application before the said Court furnishing fresh particulars of the petitioner/accused. It seems that the same was done by the respondent/complainant in pursuance of order dated 31.08.2015 passed by the learned trial court. The fresh particulars of the petitioner/accused submitted by the respondent/complainant before the learned trial court areas under:-

Engineering Control 17/94, Gail No. 7,

Than Singh Nagar Anand Parbat, New Delhi-5

Prop:- Shahji Koul S/o Surinder Nath Koul

R/o 58, Paryag, Apartment Vasundhara Enclave,

Delhi-96.

7. From the aforesaid record, it is clear that the respondent/complainant had mentioned wrong address of the petitioner/accused both in the statutory notice of demand as well as in the complaint because Priyag Apartment, Vasundhara Enclave-96 is located in Delhi not in Jammu. Thus, it can safely be stated that statutory notice of demand was sent by the respondent/complainant to the peti