Serial No. 109 Suppl. Cause List. HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM (M) No. 534/2024 CrlM Nos. 1223/2024, 1271/2024, 1699/2024. BALDEV SINGH RAINA …Petitioner (s) Through: Mr. Shabaz Sikandar, Advocate. VERSUS MRS. SHAKEELA. Through: Mr. A.H. Naik, Sr Advocate with Mr. Zia, Advocate. …Respondent(s) CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE. ORDER 30.05.2025 01. The petitioner through the medium of present petition has challenged complaint filed by the respondent against him alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881. Challenge has also been thrown to Order dated 10.05.2023 passed by the learned Additional Special Mobile Magistrate, Pahalgam (hereinafter referred to as the learned trial Magistrate) whereby cognizance of offence has been taken and process has been issued against the petitioner. 02. Heard and considered. 03. It appears that the respondent/complainant has filed a complaint before the learned trial Magistrate alleging therein that the petitioner has issued two cheques, both dated 16.01.2023 for Rs. 50.00 lacs each in favour of the respondent for discharging his liability towards him. When the said cheques were presented by the respondent before her banker for encashment, the same were returned unpaid for insufficiency of funds and Memo dated 16.02.2023 came to be issued by J&K Bank, Branch Pahalgam. 04. The respondent/complainant is stated to have issued a legal notice of demand dated 15.03.2023 which was sent to the petitioner through Registered Post. Despite acknowledging the service of such notice, the petitioner did not liquidate his liability, which compelled the respondent to file the impugned complaint before the learned trial Magistrate. Vide impugned order dated 10.05.2023, the learned trial Magistrate has taken cognizance of offences and has issued process against the petitioner. 05. The petitioner has challenged the impugned order passed by the learned Trial Magistrate on the grounds that the complaint filed by the petitioner is beyond the prescribed period of limitation, inasmuch as the same has not been filed within forty-five days of receipt of legal notice of demand. It has been further contended that the learned trial Magistrate has recorded contradictory assertions in the impugned order by recording at one place that the petitioner had refused to accept the notice and at another place that he had received the notice of demand. 06. The other ground that has been urged by learned counsel for the petitioner for impugning the order of the learned trial Magistrate is that no enquiry as contemplated under Section 202 of the Cr.P.C. was undertaken by the learned trial Magistrate before issuing process against the petitioner. This according to the learned counsel, was mandatory in view of the fact that the petitioner/accused resides beyond the territorial limits of the learned trial Magistrate. 07. So far as the first ground urged by learned counsel for the petitioner is concerned in this regard it is to be noted that in the impugned complaint it is mentioned that the notice of demand was sent through registered post to the petitioner/accused. In this regard, the complainant had placed on record a copy of postal receipt on 15.03.2023. As per the provisions contained in Section 27 of General Clauses Act, a notice sent through registered post on the correct address is deemed to have been served upon the addressee. Such a presumption arises after the expiry of thirty days from the date when the notice is sent through registered post. Thus, the notice sent by post on 15.03.2023 can be presumed to have been served upon the respondent on 14.04.2023. The complaint has been filed on 10.05.2023. Thus, the complaint filed by the respondent against the petitioner appears to have been presented within the prescribed period of limitation. The presumption under Section 27 of General Clauses Act is, however, rebuttable in nature and it is open to the accused/respondent/petitioner to prove that the notice was either not served upon him or the same was served upon him on a different date. But, at this stage and in these proceedings, this Court cannot determine this aspect of the matter. 08. That takes us to the ground relating to challenge to the order of issuing process framed by the learned trial Magistrate. A perusal of the said order shows that the learned trial Magistrate has recorded contradictory facts therein. He at one stage has recorded that the petitioner had refused to accept the notice, but at the same time, he has also recorded that the petitioner has received the notice. This appears to be either an inadvertent mistake or mechanical functioning on the part of the learned trial Magistrate. In both situations, the impugned order needs to be corrected by passing a fresh order. 09. The ground urged by the petitioner regarding absence of inquiry under Section 202 Cr.P.C. appears to be forceful. The petitioner is residing at Srinagar which is beyond the territorial limits of the learned trial Magistrate. As per Section 202(1) of Cr.P.C., it is mandatory for a Magistrate to hold an inquiry either himself or to direct an investigation to be made by a police officer or through any other person in a case where the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction. The Supreme Court in the case of in RE Expeditious trial of cases under Section 138 of NI Act, 1881, “(2021)16 SCC 116” has held that even in cases relating to offences under Section 138 of the Negotiable Instruments Act, holding of inquiry/investigation in terms of Section 202 of the Cr.P.C., where accused is residing outside the jurisdiction of the court is mandatory. Therefore, in the present case no such inquiry has been conducted by the learned trial Magistrate before issuing process against the petitioner, the impugned order passed by the learned trial Magistrate is not justifiable in law. 10. For the foregoing reasons, the impugned order dated 10.05.2023 passed by the learned trial Magistrate is set aside and the learned trial Magistrate is directed to proceed afresh in the matter in the light of what has been stated hereinbefore. 11. Copy of this order be sent to learned trial Magistrate for information and compliance. (Sanjay Dhar) Judge SRINAGAR 30.05.2025 Bisma