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| HC dismisses petition in bounce cheque case | | | Jammu, March 26
Justice YP Nargotra of J&K High Court Jammu wing has dismissed the petition filed by S Janak Singh seeking quashment of the complaint filed against him as well as the Trial Court.
As per the petition filed through Advocate KS Johal, the petitioner/ accused issued a cheque on September 13, 2002 for Rs 1.25 lakhs in favour of respondent Pritpal Singh. The respondent/complainant presented the cheque before the bank for encashment, but the same was dishonoured on October 4, 2002 on the ground that account stood already closed since July 8, 2000. After bouncing of the cheque complainant Pritpal Singh issued a notice through Advocate KS Puri on October 26, 2002 for calling upon the accused to refund the amount of the cheque along with interest within 15 days from the date of the receipt of notice. Thereafter the complainant filed a complaint u/s 138 of Negotiable Instrument Act before the Sub-Judge Jammu. The learned Magistrate in his order dated January 18, 2003 issued process against the accused. The accused aggrieved by the order appeared before the court and filed applications for dropping of proceedings. Court however dismissed the application the accused filed this petition seeking quashment of the complaint as well as the order of the Trial Court.
Justice YP Nargotra, after hearing KS Johal appearing for the accused/petitioner and Adv KS Puri appearing for the respondent/ complainant and also referred the judgments and the law laid down by the Apex Court ,observed that in a case where the complainant presents the complaint u/s 138 of the Act before expiry of the notice period, the complaint is pre-mature, the magistrate in such complaint presented May either await maturity the expiry of the period of notice contemplated by Section 138 (c) for taking cognizance or return the same to the complainant for filling the same after the expiry of period of 15 days. The magistrate is not empowered to take cognizance upon such complaints before the expiry period of notice. In the present case the magistrate took the cognizance on January 18, 2003 while the period of notice had expired on November 16, 2002. Therefore, no illegality or impropriety can be said to have been committed by the trial Magistrate in taking cognizance upon the complaint .There is no merit in the contention of Advocate KS Johal. The next content of Adv Johal, that there was in sufficient material available before the Trial Magistrate in the shape of preliminary statement on which the process could have been issued. This contention is also without any force. The memo for returning the cheque in original as well as the acknowledgement indicating the receipt of the notice issued have been placed on record by the complainant and his statement, he has clearly spelled out the necessary facts which constituted the offence thus there is no force in Adv Johal arguments.
With these observations Court dismissed the petition and record of the trial court ordered to be sent back with the direction to parties' cause their appearance before the court.
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