GH. NABI SHAH Vs. MOHAMMAD AMIN BHAT

JUDGEMENT

(1.) CHALLENGE is to the order of learned Sessions Judge Srinagar dated 19.08.2006 in Revision petition titled Gh. Nabi Shah v. Mohammad Amin Bhat whereby learned Sessions Judge has accepted the revision petition filed by the respondent herein against the order of trial Magistrate dated 27.2.2006 taking cognizance in complaint titled Gh, Nabi Shah v. Mohammad Amin Bhat.

(2.) FACTS relevant to the disposal of criminal revision in hand, are that the petitioner on 27.2.2006 filed a complaint before learned Chief Judicial Magistrate Srinagar alleging that cheque No. 0414399,1 CAL/FL/B/2001 dated 13.8.2005 issued by the respondent had been returned unpaid on the ground that "no sufficient funds" were available in the account of the respondent to make the payment. The learned Chief Judicial Magistrate in turn transferred the complaint to City Magistrate Srinagar for its disposal under law. The petitioner alleged that despite notice to the respondent as required under Section 138 of Negotiable Instrument Act, 1881 (hereinafter called the Act), the respondent had failed to make the payment to pay the cheque amount of Rs. 1,00,000/ - to the petitioner and that the respondent as such had committed offence punishable under the Act. The petitioner appended with the complaint copies of three notices issued by the petitioner through his counsel dated 28.9.2005 and 30.1.2006 as also other relevant record. Learned City Magistrate on 27.2.2006 after recording statement of the complainant and one witness, issued summons against the respondent/accused.

(3.) LEARNED Sessions Judge found that the notice of demand mandatorily required to be issued in terms of Section 138, proviso clause - (b) prior to filing of the complaint within 30 days of return of the cheque as unpaid, was not issued by the petitioner. Learned Sessions Judge opined that the learned City Magistrate in disregard of the mandate of law laid down in Section 138 and 142 of the Act, had taken cognizance; that the impugned order was bereft of legal sanctity and liable to be set aside.