ENGINEERING CONTROL Vs. BANDAY INFRATECH PVT. LTD

JUDGEMENT

(1.) The petitioner has challenged the complaint filed by the respondent against him for offence under Sec. 138 of Negotiable Instruments Act (hereinafter for short "the NI Act") before the Court of Judicial Magistrate, 1st Class (3rd Additional Munsiff), Srinagar. The petitioner has also challenged order dtd. 15/4/2015, whereby the learned Magistrate has, after taking cognizance of the offence, issued process against the petitioner.

(2.) It appears that the respondent has filed a criminal complaint for offence under Sec. 138 of the NI Act against the petitioner before the trial Magistrate alleging that the petitioner had issued a cheque bearing No.33201209 dtd. 12/2/2015 for an amount of Rs.22,89,500.00. The cheque was drawn on J&K Bank Branch Ltd in favour of the complainant and when the same was presented for payment before the bank, it was returned unpaid for insufficiency of funds. The respondent/complainant is stated to have served a statutory legal notice of demand upon the petitioner but despite receipt of the same, the petitioner failed to make the payment within the statutory period and as a consequence of this, the respondent filed the impugned complaint against the petitioner before the learned trial Magistrate, who, vide the impugned order dtd. 15/4/2015, took cognizance of the offence and observed that, prima facie, offence under Sec. 138 of the NI Act is made out against the petitioner. Accordingly, process was issued against the petitioner.

(3.) The only ground urged by the petitioner for challenging the impugned complaint and the order of taking cognizance is that statutory notice of demand has not been served upon him, inasmuch as the address on which the respondent has dispatched the said notice is incorrect to the knowledge of the respondent. It is contended that the petitioner is a resident of Delhi but the notice of demand has been dispatched by the respondent/complainant on a wrong address at Jammu. Thus, according to the petitioner, without service of statutory notice of demand upon him, it cannot be stated that the offence under Sec. 138 of the NI Act is made out against him. It is urged that the learned trial Magistrate has not taken note of this aspect of the matter and passed the impugned order dtd. 15/4/2015 which is liable to be set aside.