S. No. 22

Regular Cause List

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

CRM(M) No. 136/2020

Mohammad Ramzan Ganie

…Petitioner(s)

Through: Mr. Rabinder Singh, Advocate

Vs.

Abdul Rashid Sheikh

...Respondent(s)

Through: Mr. M. S. Reshi, Advocate

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

O R D E R

30.09.2022

1.

Through the medium of this petition filed under section 482 Cr.PC,

the petitioner is seeking quashment of cognizance order and

proceedings initiated against him by the Court of Additional Special

Mobile Magistrate, Bandipora, in a complaint filed under section 138

of Negotiable Instruments Act.

2.

The main ground taken up in this petition is that the notice as required

under Clause (b) of Proviso to Section 138 of Negotiable Instruments

Act, has not been issued within the time as provided under the Act,

therefore, the trial court ought not to have entertained the complaint or

taken cognizance. The two cheques dated 25.02.2020 and 25.03.2020,

are said to have been issued by the petitioner for an amount of Rs.

50,000/- each. Both these cheques were presented for encashment

before the bank and were returned back on the ground <funds

insufficient=. After receipt of said memo from the bank, notice for

demand has been issued on 04.07.2020.

2

CRM(M) No. 136/2020

3.

Chapter XVII of the Negotiable Instruments Act, deals with penalties

in case of dishonour of cheques for insufficiency of funds in the

accounts. Section 138 of Negotiable Instruments Act reads as under:-

<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 for 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 unless4

(a)

the cheque has been presented to the bank within a period

of six months from the date on which it is drawn or within the

period of its validity, whichever is earlier;

(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 information by him

from the bank regarding the return of the cheque as unpaid; and

(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=.

4.

From the plain reading of aforesaid section, it is clear that the cheque

has to be presented within a period of its validity and in case cheque is

returned back unpaid, the payee or the holder of the cheque has to

issue notice of demand to the drawer of the cheque within a period of

30 days and if despite service of said demand notice, he fails to make

the payment within a period of 15 days from the date of receipt of

notice of demand, such person shall be deemed to have committed the

offence under section 138 of Negotiable Instruments Act, in respect of

which cognizance could be taken. Now coming to the present case,

the cheques have been issued on 25.02.2020 and 25