ISHTIYAQ AHMAD MIR Vs. GHULAM NABI SHAH

JUDGEMENT

(1.) This petition under section 561-A of the Code of Criminal Procedure (for short the Code) seeks quashing of the complaint under section 138 read with section 142 of the Negotiable Instruments Act, for short ( for short the Act) filed by the respondent (complainant) against the petitioner (accused) in the court of learned Judicial Magistrate (Sub Judge), Kupwara. Quashing is also sought of the order dated 04.07.2017, whereby the learned Magistrate has issued process against the petitioner for proceeding against him for the commission of the said offence.

(2.) The only ground urged by the learned counsel for the petitioner is that the complaint is not maintainable for the reason that the statutory notice required to be issued under Section 138 of the Act by the payee (complainant) has been issued beyond the stipulated period of 30 days. Learned counsel pointed out that as per the complaint and the copy of the notice annexed thereto,the cheque in question was dishonoured by the bank on 20.05.2017, whereasthe statutory notice was issued on 20.06.2017, that is, beyond the prescribed period of thirty days from the date of dishonour of the cheque. Learned counsel, thus,argued that the bar contemplated under Section 138 of the Act appliesas no complaint under said section can be filed unless the statutory notice is issued within the prescribed period. Learned counsel cited Supreme Court judgment in Sivakumar v. Natarajan (2009) 13 SCC 623 and a judgment of this Court in Farahan Hassan Kitab v. Tariq Ahmad Haji 2013 (3) JKJ 615 [HC].

(3.) Learned counsel for the respondents on the other hand, while not denying that the statutory notice was issued after the expiry of thirty days starting from 20.05.2017 the date of dishonour of the cheque, submitted that limitation of 30 thirty days reckons not from the date the cheque is dishonoured by the Bank but from the date wheninformation in this regard is received by the payee. Learned counsel submitted that the information about the dishonour of the cheque was received by the complainant at a later stage and the petition thus involves a question of fact as to when the information was received by the petitioner and cannot be quashed on that score. Learned counsel cites Supreme Court judgment in M/S Munoth Investments Ltd. v. M/S Puittukola Properties Ltd. and Anr, AIR 2001 Supreme Court 2752.