RIYAZ AHMAD BHAT Vs. MOHAMAD AMIN SHEIKH.

JUDGEMENT

(1.) Petitioner seeks quashment of complaint under Sec. 138 of the Negotiable Instruments Act, and proceedings emanating therefrom, filed against him by the respondent in the Court of Chief Judicial Magistrate, Pulwama on the ground that the complaint has been filed before expiry of 15 days from the date of receipt of demand notice served by the respondent on the petitioner. It is insisted that in terms of Proviso to Sec. 138 of the Negotiable Instruments Act, payee of cheque or the holder in due course can maintain a complaint under Sec. 138 only after the drawer of the cheque fails to make the payment within 15 days of the receipt of the demand notice served by, the payee or holder in due course. The Magistrate, before whom a complaint is filed before expiry of 15 days of demand notice, according to the petitioner lacks jurisdiction to take cognizance of the offence and issue process against the drawer of the cheque. The petitioner also questions the order of the trial Magistrate, dated 08.09.2009, whereby cognizance has been taken on the grounds that the respondent had placed on the file only a copy of notice and that of the postal receipt and failed to prove the postal receipt pertaining to the notice. The petitioner also disputes the transaction between the parties as set out in the complaint. The petitioner in alternative seeks transfer of the complaint from the Court of Chief Judicial Magistrate, Pulwama to the Court of competent jurisdiction at Srinagar.

(2.) Heard and considered.

(3.) From perusal of the record it transpires that the cheques claimed to have been drawn by the petitioner were presented on 07.08.2009 by the respondent at Jammu and Kashmir Bank, Branch Baghat Barzulla on which the cheques were drawn. On the date of presentation itself the Bank returned the cheques without payment with the report "funds not sufficient". The respondent as claimed in the complaint sent a demand notice by registered post from post office Pulwama, on the address of the petitioner on 20.08.2009. The complaint alleging commission of offence under Sec. 138 was filed in the Court of Chief Judicial Magistrate, on 8th Sept., 2009 i.e, 19 days after the demand notice by registered post was sent to the petitioner. In the circumstances it is not a case where the complaint has been filed before the statutory period of 15 days came to an end. The respondent having sent the demand notice by registered post on 20th Aug., 2009 could have reasonably expected the notice to have been handed over to the petitioner within a day or two after it was posted having regard to the distance between Pulwama and Nowgam, Srinagar. The respondent alive to the fact that the notice would take some time to reach the petitioner did not file the complaint immediately after the notice was posted. The respondent instead waited for four more days and filed the complaint as already stated on 19th day after the notice was dispatched. So viewed it is not a case of premature filing of the complaint as sought to be projected by the petitioner. All other grounds are factual in character and expected to be dealt with by the trial Magistrate. There is, however, merit in the petitioner's claim for transfer of the complaint from the Court of Chief Judicial Magistrate, Pulwama to the Court of competent jurisdiction at Srinagar. It is pertinent to point out that the cheque was presented at Srinagar, and dishonoured at Srinagar. It is no body's case that the cheque was drawn at Pulwama. Merely because notice was dispatched from Pulwama, to the petitioner at his Srinagar address, would not give jurisdiction to the Court at Pulwama, to proceed with the complaint. Viewed thus the competent Court at Srinagar has jurisdiction to proceed with the complaint.