TaxTMI 
TaxTMI 
2022 (7) TMI 514
X X X X Extracts X X X X
X X X X Extracts X X X X
....nagar. The petitioner has also challenged order dated 15.04.2015, whereby the learned Magistrate has, after taking cognizance of the offence, issued process against the petitioner. 2) It appears that the respondent has filed a criminal complaint for offence under Section 138 of the NI Act against the petitioner before the trial Magistrate alleging that the petitioner had issued a cheque bearing No.33201209 dated 12.02.2015 for an amount of Rs.22,89,500/. The cheque was drawn on J&K Bank Branch Ltd in favour of the complainant and when the same was presented for payment before the bank, it was returned unpaid for insufficiency of funds. The respondent/complainant is stated to have served a statutory legal notice of demand upon the petitio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er: I) Engineering Control, through its Proprietor, Shah Ji Koul, S/O Surrender Nath Koul, RIO 58 Priyag Apartment, Vasundra Enclave-96 Jammu, J&K II) Anand Prabat New Delhi 6) A perusal of the impugned complaint also shows that address of the petitioner/accused has been shown as resident of 58-Priyag Apartment, Vasundra Enclave-96, Jammu. When the process was issued by the learned trial Magistrate against the petitioner/accused, the same could not be served upon him because of the wrong address. The trial court record shows that the respondent/complainant moved an application before the said Court furnishing fresh particulars of the petitioner/accused. It seems that the same....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he complainant only to give a notice of demand and service of notice is not necessary. It is contended that there was an agreement executed between the parties and in the said agreement, the address of the petitioner was shown in the same as shown in the notice of demand and the complaint. According to him, this is the address given by the petitioner himself and, as such, he cannot contend that the same is a wrong address. In support of his contentions, learned counsel for the respondent has relied upon the judgments of the Supreme Court in the case of D. Vinod Shivappa vs. Nanda Belliappa, (2006) 6 SCC 456 and C. C. Alavi Haji vs. Palapetty Muhammad and another, (2007) 14 SCC. 9) Before proceeding to determine the merits of the rival co....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Belliappa, (2006) 6 SCC 456, has elaborately dealt with a situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. It was observed that if in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. The Court further observed that it would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. The Court wen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ents Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in provisos (a), (b) and (c) appended to Section 138 of the Negotiable Instruments Act are intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice that the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to ....