Service of demand notice is essential for constituting an offence under Section 138 of the NI Act; the trial court must assess prima facie evidence.

ORDER :

1. The petitioner through the medium of the present petition has challenged complaint filed by the respondent against him alleging commission of offence under Section 138 of NI Act. Challenge has also been thrown to the order dated 19.07.2023 passed by the learned Judicial Magistrate 1st Class (City Judge), Srinagar whereby process has been issued against the petitioner.

2. Heard learned counsel for the parties and perused the record.

3. The main ground that has been urged by the learned counsel for the petitioner for impuging the complaint and the order dated 19-07-2023 passed by the learned trial Magistrate is that the notice of demand stated to have been issued by the respondent against the petitioner has never been served upon him. It has been contended that the service of notice of demand is a vital ingredient of offence under Section 138 of NI Act and without effecting service of demand notice, no offence is made out against the petitioner. Learned counsel has, in this regard placed heavy reliance upon the certificate issued by the Post Master wherein it has been provided that envelope containing notice of demand was returned to the sender on 14.06.2023 as the addressee had left the station without information.

4. There can be no doubt to the legal position that without the service of demand of notice and upon failure of the accused to pay the cheque amount to the complainant within the stipulated time, after service of notice of demand the offence under Section 138 of NI Act is not constituted. However, in the instant case, the respondent/complainant has specifically pleaded that he has served the notice of demand upon the petitioner. This has been reiterated by the respondent in his statement on oath before the learned Magistrate. The postal receipt has also been placed on record by the respondent complainant along with the complaint. On the basis of this material, the learned trial Magistrate was justified in recording a prima facie opinion that offence under Section 138 of NI Act is made out against the petitioner and to issue process against the petitioner. So far as the defence of the petitioner that notice of demand was never served upon him is concerned, there was no material available before the learned trial Magistrate to this effect at the time of passing of impugned order dated 19.07.2022 as such it cannot be stated that the learned trial Magistrate has committed any illegality while passing the said order. The question whether or not the certificate issued by the Post Master on which reliance has been placed by the petitioner is genuine is a matter which would be decided by the trial Magistrate during the trial of the case and this Court in these proceedings cannot go into the question of veracity of the said document. If the petitioner succeeds in proving that the document in question is genuine and it pertains to the demand notice alleged to have been sent by the respondent to the petitioner, the accused/petitioner would have a good defence to the complaint filed by the respondent. This aspect of the matter has to be considered by the trial Magistrate at the time of final disposal of the complaint and the same cannot be looked into by this Court in these proceedings.

5. For the foregoing reasons, I do not find any merit in this petition. The same is accordingly dismissed leaving it open to the learned trial Magistrate to consider the defence set up by the petitioner at the time of final disposal of the complaint.