17 Regular HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM (M) No. 158/2020 Mohammad Ramzan Ganie ….. Petitioner (s) Through: Mr. Tawheed Ahmad, Adv. V/s Abdul Rashid Sheikh ….. Respondent(s) Through: Ms. Insha Javed Bhat, Adv. vice Mr. M S Reshi, Adv. Coram: Hon’ble Mr. Justice Sanjay Dhar, Judge. ORDER 19.02.2025 1. The petitioner has challenged complaint filed by the respondent against him before the court of Additional Special Mobile Magistrate, Bandipora alleging commission of offence under Section 138 of the Negotiable Instruments Act against the petitioner. 2. Heard and considered. 3. Learned counsel for the petitioner has contended that the impugned complaint filed by the respondent against the petitioner is premature inasmuch as the same has been filed prior to expiry of statutory period of 15 days from the date of service of notice of demand. He has further contended that even notice of demand is defective inasmuch as it provides only 07 days’ time to the petitioner to pay the cheque amount to the respondent. Lastly it has been contended that Asif Gull I attest to the accuracy and authenticity of this document 19.02.2025 03:11 P a g e | 2 CRM (M) No. 158/2020 the order whereby cognizance of offence has been taken by the learned trial Magistrate against the petitioner is cryptic in nature and does not reflect application of mind on the part of the learned Magistrate. 4. Learned counsel for the respondents on the other hand has submitted that the notice of demand was served upon the petitioner on 06.07.2020 and the impugned complaint came to be filed on 22nd July 2020, as such, the statutory period of 15 days had already expired. She has further submitted that the other contentions raised by the learned counsel for the petitioner are also without any substance. 5. If we have a look at order dated 22.07.2022 passed by the learned trial Magistrate whereby cognizance of offence has been taken and the process has been issued against the petitioner, it becomes clear that same is absolutely cryptic in nature and it does not reflect application of the mind on the part of the learned Magistrate. In the said order, the learned Magistrate has not recorded his satisfaction as to what offences are made out against the petitioner. Simply process has been issued against the petitioner without even referring to the material available on record. 6. Issuance of process in criminal cases is a serious business and this Court and Supreme court has time and again laid down that before issuing process in a criminal case against an accused, the Magistrate is expected to apply his mind to the material on record and thereafter Asif Gull I attest to the accuracy and authenticity of this document 19.02.2025 03:11 P a g e | 3 CRM (M) No. 158/2020 frame prima facie opinion as to what offences are disclosed against the accused. It is only thereafter that the process has to be issued against the accused. The order taking cognizance of the offences has to reflect application of mind on the part of the Magistrate, which in the instant case is completely lacking. Therefore, order dated 22.03.2022 passed by the learned trial Magistrate is not sustainable in law. 7. In view of the above, the impugned order whereby cognizance of offences has been taken and process has been issued against the petitioner is quashed leaving it open to the learned trial Magistrate to pass fresh order after taking into account the material on record before him. While passing fresh order the learned trial Magistrate shall deal with the contentions as have been raised by the learned counsel for the petitioner in this petition, reference whereof is given hereinbefore. 8. Disposed of as above. 9. Copy of this order be sent to the court of Additional Special Mobile Magistrate, Bandipora. (Sanjay Dhar) Judge SRINAGAR 19.02.2025 Aasif Whether the order is speaking is speaking Yes/No Whether the order is reportable Yes/No Asif Gull I attest to the accuracy and authenticity of this document 19.02.2025 03:11