MOHD SHAFI AHANGER Vs. YASIR PAUL

JUDGEMENT

(1.) Both these revision petitions having arisen out of an order dated : 30.9.2003 passed by Judicial Magistrate, (Judge Small Cause), Srinagar in a case between the same parties and on the similar facts, except variance in the number of the cheque and the amount mentioned therein, are being disposed of by this common order.

(2.) FACTS giving rise to these revision petitions in resume may be noticed.

(3.) ACCUSED -respondent issued cheque in the amount mentioned therein in favour of the complainant -petitioner and when the said cheques were presented in the Bank for encashment, were bounced and returned with the memo dated: 29.7.2003 "insufficient balance". Demand notice was given by the complainant to the accused through registered post, informing him regarding return of the cheque as unpaid and requiring him to make the payment of the said amount of cheques. The non -payment of the amount of cheques by drawer within 15 days of such notice led the complainant to prefer a complaint under section 138 of the Negotiable Instrument Act, 1881 ( hereinafter to be referred to be "the Act"). The trial magistrate, however, after recording the preliminary statement of the complainant took cognizance and issued process to the accused for his appearance in the case. In response to the summons, the accused put in his appearance and filed an application before the trial magistrate seeking dropping of the proceedings initiated against him, inter -alia, alleging that the complaint does not disclose the date of receipt of the demand notice, stated to have been given to the drawer. It was further contended that the demand notice is not in accordance with law as it does not disclose the statutory period for the payment of amount of cheque. After receipt of such notice, therefore, it does not fulfill the mandatory requirement under section 138 of the Act and thus the complaint is not maintainable. The trial magistrate, after inviting objections and hearing the parties, found that the essential ingredients of the offence have not been satisfied by the complainant for prima facie making out a case under section 138 of the Act and ordered the dropping of proceedings against the accused in the complaint vide order dated : 30. 9.2003 which became the subject matter of challenge in these petitions.