11/2/22, 5:02 PM If Demand Notice U/S 138 NI Act Mentions Correct Address Of Accused, Question Of Delivery Due To Variation
ariation In Postal Receipt …
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NEWS UPDATES
If Demand Notice U/S 138 NI Act
Mentions Correct Address Of Accused,
Question Of Delivery Due To Variation In
Postal Receipt To Be Decided At Trial:
J&K&L HC
Basit Amin Makhdoomi 2 Nov 2022 4:39 PM
https://www.livelaw.in/news-updates/if-demand-notice-us-138-ni-act-mentions-correct-address-of-accused-question-of-delivery-due-to-variation-in-post… 1/9
11/2/22, 5:02 PM If Demand Notice U/S 138 NI Act Mentions Correct Address Of Accused, Question Of Delivery Due To Variation In Postal Receipt …
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.
https://www.livelaw.in/news-updates/if-demand-notice-us-138-ni-act-mentions-correct-address-of-accused-question-of-delivery-due-to-variation-in-post… 2/9
11/2/22, 5:02 PM If Demand Notice U/S 138 NI Act Mentions Correct Address Of Accused, Question Of Delivery Due To Variation In Postal Receipt …
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.
https://www.livelaw.in/news-updates/if-demand-notice-us-138-ni-act-mentions-correct-address-of-accused-question-of-delivery-due-to-variation-in-post… 3/9
11/2/22, 5:02 PM If Demand Notice U/S 138 NI Act Mentions Correct Address Of Accused, Question Of Delivery Due To Variation In Postal Receipt …
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
https://www.livelaw.in/news-updates/if-demand-notice-us-138-ni-act-mentions-correct-address-of-accused-question-of-delivery-due-to-variation-in-post… 4/9
11/2/22, 5:02 PM If Demand Notice U/S 138 NI Act Mentions Correct Address Of Accused, Question Of Delivery Due To Variation In Postal Receipt …
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
https://www.livelaw.in/news-updates/if-demand-notice-us-138-ni-act-mentions-correct-address-of-accused-question-of-delivery-due-to-variation-in-post… 5/9
11/2/22, 5:02 PM If Demand Notice U/S 138 NI Act Mentions Correct Address Of Accused, Question Of Delivery Due To Variation In Postal Receipt …
Counsel For Petitioner: M/S: Aatir Kawoosa & Areeb Kawoosa.
Counsel For Respondent: Mr N. A. Ronga
Click Here To Read/Download Judgment
https://www.livelaw.in/news-updates/if-demand-notice-us-138-ni-act-mentions-correct-address-of-accused-question-of-delivery-due-to-variation-in-post… 6/9
11/2/22, 5:02 PM If Demand Notice U/S 138 NI Act Mentions Correct Address Of Accused, Question Of Delivery Due To Variation In Postal Receipt …
TAGS JAMMU & KASHMIR AND LADAKH HIGH COURT #JUSTICE SANJAY DHAR
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https://www.livelaw.in/news-updates/if-demand-notice-us-138-ni-act-mentions-correct-address-of-accused-question-of-delivery-due-to-variation-in-post… 7/9
11/2/22, 5:02 PM If Demand Notice U/S 138 NI Act Mentions Correct Address Of Accused, Question Of Delivery Due To Variation In Postal Receipt …
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https://www.livelaw.in/news-updates/if-demand-notice-us-138-ni-act-mentions-correct-address-of-accused-question-of-delivery-due-to-variation-in-post… 8/9
11/2/22, 5:02 PM If Demand Notice U/S 138 NI Act Mentions Correct Address Of Accused, Question Of Delivery Due To Variation In Postal Receipt …
https://www.livelaw.in/news-updates/if-demand-notice-us-138-ni-act-mentions-correct-address-of-accused-question-of-delivery-due-to-variation-in-post… 9/9
