MEHRAJ-UD-DIN-GANAI Vs. MIR YOUSUF

JUDGEMENT

(1.) THE facts of the case are that the petitioner had issued a cheque bearing No. 156280 dated 30/07/2007 for an amount of Rs.50,000/- in favour of the respondent. The cheque was dishonoured by the Punjab and Sindh Bank on 16/08/2007 for insufficiency of funds in the account of the petitioner. Faced with this situation, the respondent claimed to have served the "notice for demand" on 03/09/2007 but without waiting for the stipulated period of 15 days, filed the complaint on 05/09/2007. Learned Magistrate after recording the statement of complainant (respondent) and his one witness, has taken cognizance vide his order dated 05/09/2007. The petitioner (accused) has challenged the proceedings so seeks quashment of the same.

(2.) THE short submission made by learned counsel for the petitioner is that the cause of action for lodging complaint accrues on the expiry of 15 days of "Notice for demand". Admittedly, notice has been issued on 03/09/2007, whereas, complaint has been filed on 05/09/2007 so on the face of it complaint was premature. Learned Magistrate has taken cognizance, which is not only illegal but also shows non application of mind.

(3.) THE short submission as made by learned counsel for the petitioner on perusal of the record, is found to be genuine, as admittedly notice of demand has been issued on 03/09/2007 and complaint has been filed on 05/09/2007. Filing of the complaint was premature but however, curable, but taking of cognizance is totally illegal.