2 Nov 2022 1:39 PM GMT
The Jammu and Kashmir and Ladakh High Court has held that if correct address of the accused is mentioned in the complaint as well as in the notice of demand under Section 138 of the Negotiable instrument Act, then mere variation of address in the postal receipt will not lead to a presumption that the notice was sent on a wrong address. "In these circumstances, the question whether the notice...
The Jammu and Kashmir and Ladakh High Court has held that if correct address of the accused is mentioned in the complaint as well as in the notice of demand under Section 138 of the Negotiable instrument Act, then mere variation of address in the postal receipt will not lead to a presumption that the notice was sent on a wrong address.
"In these circumstances, the question whether the notice of demand has been actually received by the petitioner/accused can be determined only during the trial of the case," it said.
The observations were made by Justice Sanjay Dhar while hearing a plea in terms of which the petitioner had challenged a complaint filed by the respondent against her for offences under Section 138, read with Section 142 of Negotiable Instruments Act which were stated to be pending before the Court of Judicial Magistrate, 1st Class (Judge Small Causes), Srinagar.
The petitioner primarily challenged the complaint on the ground that the statutory notice of demand was never served by the respondent/complainant upon the petitioner and the address of the petitioner/accused as mentioned in the postal receipt is incorrect and hence it could not be presumed that she has received the statutory notice of demand. In order to press the contention the counsel placed firm reliance on the Judgment of this Court in Engineering Control vs. Banday Infratech Pvt. Ltd 2022 LiveLaw (65)
Petitioner further contended that while taking cognizance of the offences and issuing process against the petitioner, the trial Magistrate had acted mechanically as a description of 11 cheques instead of 07 cheques had been mentioned in the impugned order and it has been recorded in the order that the cheques were dishonoured through a single memo of dishonour which is against the records.
Adjudicating upon the matter Justice Dhar reiterated that mere issuance of notice would not by itself give rise to a cause of action, and the same would arise only when the notice has been communicated to the drawer of the cheque, who, despite having been communicated the notice of demand, fails to liquidate the cheque amount within the stipulated period. It can also not be disputed that presumption of receipt of notice by drawer of the cheque can be raised only if the notice has been dispatched through registered post, to his correct address and such inference cannot be drawn if the notice has been sent on the incorrect address of the drawer of the cheque, the bench observed.
Determining the question falls as to whether the notice of demand has been dispatched by the respondent/complainant on the wrong address of the petitioner/accused, as has been claimed by her, the bench noted that in the notice of demand the address of the petitioner is shown as Tamanna R/O Pati Kursoo Rajbagh Srinagar Pin Code 190008 while in the postal receipt annexed with the complaint, it is recorded that the item has been dispatched to "Tamanna Farooq, Srinagar, Pin Code 190008, Jawahar Nagar from Advocate Sarnawaz Thakur, Srinagar" adding that the postal pin code of both address exists to be same.
Revealing its mind after perusing the factual matrix of the matter the bench observed that it is not discernible from the postal receipt as to whether the residence of the petitioner was shown as Rajbagh or Jawahar Nagar but one thing is clear that the respondent/complainant, while issuing notice of demand to the petitioner/accused, has reflected her correct address on the notice of demand.
"In such circumstances, it would not be open to this Court to accept the contention of the petitioner that the notice of demand has been dispatched by the respondent/complainant on incorrect address of the petitioner" the bench stated.
Explaining its position further on the matter the bench observed that in the case of in Engineering Control vs. Banday Infratech Pvt. Ltd 2022 LiveLaw (65) on which the counsel for the petitioner had placed reliance, the notice of demand was addressed and dispatched on an address which was palpably incorrect and the facts of the instant case are entirely different, inasmuch as correct address of the petitioner is mentioned in the complaint as well as in the notice of demand. In the postal receipt full address of the petitioner is not mentioned and therefore, it cannot be presumed that the notice was sent on a wrong address, the bench maintained.
Dealing with the other contention of the petitioner that cognizance of offences has been taken and process has been issued against the petitioner, is mechanical in nature, inasmuch as it reflects wrong particulars of the cheques and the memos of dishonour, Justice Dhar observed that a description of 11 cheques instead of 07 cheques in the impugned order
reflects non-application of mind on the part of the trial Magistrate and errors made by the trial Magistrate in recording the particulars of the cheques and the memos cannot be brushed as typographical errors.
"These errors are relating to essential aspects of the case and the same clearly reflects that the learned trial Magistrate, while passing the impugned order, has approached the case in a mechanical and negligent manner", the bench added.
For the foregoing reasons the court partly allowed the petition and impugned order whereby process has been issued against the petitioner was set aside and the case is remanded to the learned trial Court with a direction to pass a fresh order of cognizance on the basis of the material available before him after hearing the complainant/ respondent.
Case Title : Tamanna Vs Khushmeela
Citation : 2022 LiveLaw (JKL) 203
Counsel For Petitioner: M/S: Aatir Kawoosa & Areeb Kawoosa.
Counsel For Respondent: Mr N. A. Ronga
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