1 S. No. 66 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) No.171/2022 CrlM No.561/2022 UMAR MOHI UD DIN GANIE …Petitioner(s) Through: Mr. Parvaiz Nazir, Advocate. Vs. SAMIULLAH RAH ...Respondent(s) Through: None. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 30.09.2025 (ORAL) 1. In the instant petition, petitioner herein has called in question order dated 14-03-2022 (for short ‘the impugned order’) including the proceedings initiated in a complaint filed by the respondent herein in terms of Section 138 of the Negotiable Instrument Act 1881 (for short “the Act of 1881”) pending before the Special Mobile Magistrate & PT&E Srinagar (for short “the Magistrate”). 2. Facts emerging from the record would reveal that the respondent herein filed the complaint supra against the accused petitioner herein on the premise that accused petitioner herein owed him an amount of Rs.6,50,000/- and in discharge of that liability issued two cheques bearing No.001859 dated 01-07-2009 amounting to Rs.6,00,000/- and bearing No.001856 dated 20-06-2021 for an amount of Rs.50,000/- and that upon presentation of said cheques for encashment before the Bank wherein the complaint/respondent herein has maintained his account, the said cheques got dishonored and returned on 18-09-2021 to the complainant/respondent herein with a memo indicating the reason as “fund insufficient” and that owing to the dishonor of the said cheques, complainant/respondent herein sent a legal notice dated 19-01-2022 through registered post to the accused/petitioner herein on 21- 01-2022 which came to be received by the accused/petitioner herein and despite the receipt of the same he did not pay the amount covered by the cheques, therefore committed an offence under the Act of 1881. 3. The complaint came to be instituted on 14-03-2022 before the Magistrate and the Magistrate on the very same date entertained the 2 complaint and consequently upon recording preliminary statements of the complainant, as also one of the witnesses in the complaint, on oath found that the accused/petitioner herein has committed the offence under Section 138 of the Act, and the Magistrate accordingly, directed the issuance of summons to the accused/petitioner for his appearance. 4. Petitioner herein being the accused in the said complaint has called in question the impugned order, as also the proceedings initiated on the complaint, on the premise that the impugned order and proceedings initiated thereon by the Magistrate are in complete violation of the provisions of Section 138 of the Act, and that the Magistrate in a hot-haste manner, entertained the complainant inasmuch as took the cognizance of the offence and summoned the accused/petitioner herein. Heard and perused the record. 5. Perusal of the record of the proceedings would reveal that the respondent herein despite service has chosen not to appear. 6. A closer examination of the complaint on the record as also the record of the complaint summoned by this Court from the Magistrate, would tend to show that the complainant in the complaint has specifically pleaded that, after receipt of the memo from the Bank, qua the dishonour of the cheque for the reasons of “insufficient funds” dated 18-09-2021, issued a legal notice on 19-01-2022 and served through registered post to the accused/petitioner on 21-01-2022. The aforesaid factual position provided emerging from the complaint ex-facie suggests that the complainant/ respondent herein has failed to follow the mandate of the provisos appended to Section 138 of the Act of 1881, which for the sake of brevity and convenience reproduced hereunder. Ingredients Of The Offence Under Section 138 Of N.I Act: ………………………… ………………………. (a) The cheque for an amount is issued by the drawer to the payee / complainant on a bank account maintained by him. (b) The said cheque is issued for the discharge, in whole or in part of any debt or other liability. (c) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank. 3 As is manifest from above, before filing a complaint qua dishonor of a cheque under the Act of 1881, it is pre-requisite provided in the aforesaid provisions that, upon receipt of information from the bank qua the dishonor of the cheque, the holder of the cheque has to make a demand for payment of the amount covered by the cheque by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of such information from the bank. 7. 7. As has been noticed in the preceding paras, the complainant/respondent herein has received the memo qua dishonor of the cheque admittedly from the bank on 18-09-2021, and as such, within 30 days from the date of receipt of such information, the complainant/respondent herein was required to make a demand from the accused/petitioner qua payment of amount covered in the cheques by giving him a notice in writing, which notice in writing in the instant case indisputably as per complainant/respondent herein is dated 19-01-2022, claimed to have been sent through registered post to the accused petitioner on 21-01-2022 that is beyond the period prescribed in Section 138 supra. 8. Seemingly, the Magistrate has overlooked the said important legal aspect and has erred by proceeding to entertain the complaint and initiated proceedings thereafter without jurisdiction. 9. Viewed thus for the aforesaid reasons, the impugned order is found to be legally unsustainable. 10. Resultantly, the petition succeeds as a consequence, whereof the impugned order dated 14-03-2022 is set aside. 11. Copy of this order be send down to Magistrate. Scanned record summoned from the Magistrate be retained on the instant file. 12. Disposed of. (JAVED IQBAL WANI) JUDGE SRINAGAR 30.09.2025 Ishaq Whether the judgement is speaking ? Yes/No Whether approved for reporting ? Yes/No