1 S. No. 10 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CrLA(AS) No.03/2024 SHEIKH ABDUL REHMAN …Petitioner(s) Through: Mr. G. A. Lone, Advocate. Vs. GHULAM NABI KABOO ...Respondent(s) Through: Respondent present in person. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 08.08.2025 (ORAL) 1. The instant appeal filed by the appellant herein is directed against judgment and order dated 28.12.2023, passed by the court of Chief Judicial Magistrate, Handwara, (for short ‘the Magistrate) in complaint titled as “Sheikh Abdul Rehman Vs. Gh. Nabi Kaboo” lies in a very compass. 2. Facts emerging from the record would reveal that the appellant herein filed a complaint under Section 138 of the Negotiable Instrument Act, 1881 (for short ‘the Act of 1881’), against the respondent herein on 04.11.2019, before the Magistrate alleging therein that three cheques issued by the accused/respondent herein in his favour on 03.10.2019, 05.10.2019, and 07.10.2019 in discharge of a debt payable at HDFC Bank, Handwara, got bounced on presentation, vide three memos dated 16.10.2019, issued by the Bank, whereupon a demand notice came to be issued on 21.10.2019, for making the payment of the amount covered by the cheques and upon receipt of the said demand notice, the accused/respondent failed to make the payment of the amount covered on the cheques, thus committed offences under the Act of 1881. 3. Upon presentation of the complaint before the Magistrate, by the complainant/appellant herein, cognizance came to be taken and process issued against the accused/respondent on 04.11.2019, 2 whereafter an application came to be filed by the accused/respondent herein before the Magistrate for dismissal of the said complaint on two fold grounds; ‘firstly’, that the complaint is premature’ and ‘secondly’, that the complainant/appellant herein did not include the son of the accused/respondent in the complaint as his said son was involved in the alleged transaction’. 4. The Magistrate, however, dismissed the said application on 18.10.2021, aggrieved whereof, the accused/respondent preferred a revision petition before the Court of Additional District Justice Judge, Handwara, (for short ‘the revisional court’) which revision petition came to be dismissed on the premise that the plea of the accused/respondent that the complaint is premature as also incompetent on account of non-impleadment of the son of the accused/respondent therein are the issues to be dealt with during the course of trial by the trial court, whereafter the Magistrate proceeded with the trial of the complaint. 5. The complainant/appellant herein in support of his case, examined witnesses four witnesses besides, appearing himself as a witness, whereas the accused/respondent herein as well led evidence in the matter. 6. The Magistrate, upon conclusion of the trial of the complaint, in terms of the judgment and order impugned in the instant appeal, concluded that the complaint, being premature, is not maintainable, however, yet proceeded to advert to the merits involved in the complaint, holding that the complainant otherwise also failed to prove the complaint on merits and consequently concluded the non-involvement of the accused/respondent in the offence under Section 138 of the Act of 1881. 7. The complainant/appellant herein is aggrieved of the impugned judgment and order, to the extent of dismissal of the complaint on merits by the trial Magistrate, after holding the complaint to be premature. Heard counsel for the parties and perused the record. 3 8. The moot question that arises for consideration of this Court in the instant appeal would be as to whether the Magistrate could have proceeded to advert to the merits of the complaint, once it had held the complaint to be premature in terms of provisions of Section 138 of the Act of 1881. 9. Law in regard to above is no more res integra and stands settled by a series of judgments of the Apex Court, including one passed in case titled as “Gajanand Burange Vs. Laxmi Chand Goyal” being in Criminal Appeal No.1229 of 2022 arising out of SlP(Crl) No.1415 of 2019 decided on 12..08.2022 wherein at para 6 of the judgment being relevant and genuine herein is reproduced hereunder: - 6. The first issue was resolved by paragraph 35 of the judgment, which is extracted below: "35. Can an offence under Section 138 of the NI Act be said to have been committed when the period provided in clause (c) of the proviso has not expired? Section 2(d) of the Code defines "complaint". According to this definition, complaint means any allegation made orally or in writing to a Magistrate with a view to taking his action against a person who has committed an offence. Commission of an offence is a sine qua non for filing a complaint and for taking cognizance of such offence. A bare reading of the provision contained in clause (c) of the proviso makes it clear that no complaint can be filed for an offence under Section 138 of the NI Act unless the period of 15 days has elapsed. Any complaint filed before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint at all in the eye of the law. It is not the question of prematurity of the complaint where it is filed before the expiry of 15 days from the date on which notice has been served on him, it is no complaint at all under law. As a matter of fact, Section 142 of the NI Act, inter alia, creates a legal bar on the court from taking cognizance of an offence under Section 138 except upon a written complaint. Since a complaint filed under Section 138 of the NI Act before the expiry of 15 days from the date on which the notice has been served on the drawer/accused is no complaint in the eye of the law, obviously, no cognizance of an offence can be taken on the basis of such complaint. Merely because at the time of taking cognizance by the court, the period of 15 days has expired from the date on which notice has been served on the drawer/accused, the court is not clothed with the jurisdiction to take cognizance of an offence under Section 138 on a complaint filed before the expiry of 15 days from the date of receipt of notice by the drawer of the cheque." As is manifest from above law laid down by the Apex Court, the complaint filed under Section 138 of the Act before the expiry of 15 days can be said to be no compliant at all in the eyes of law, and as such, in any complaint filed before such stipulated period of 15 days, no cognizance thereof can be taken by the Magistrate, for the said 4 complaint being premature inasmuch as, the court seized of there being lacking jurisdiction. 10. Having regard to the aforesaid settled position of law and coming back to the case in hand, once the Magistrate have had held that the complaint was prematurely filed before the expiry of stipulated period of 15 days, provided under the Act of 1881, it can safely be said that there was no complaint in law before the Magistrate and the Magistrate, under these circumstances ought not proceeded ahead with the merits of the complaint. The Magistrate, however, having done otherwise i.e. having proceeded to deal with the complaint on merits, has thus grossly erred which in law cannot be countenanced in view of aforesaid judgement of the Apex Court. 11. For the aforesaid reasons, the instant appeal succeeds and the impugned judgment and order dated 28.12.2023 insofar as it relates to the decision of the complaint on the merits is set aside. 12. The record of the Magistrate be remitted back forthwith. 13. In view of the aforesaid analysis, parties shall be free to take recourse to the remedies, if any available to them in law and if so advised. 14. Disposed of. (JAVED IQBAL WANI) JUDGE SRINAGAR 08.08.2025 Ishaq Whether the order is speaking? Yes/No Whether approved for reporting ? Yes/No