Tag: J&KHighCourt

–Report by Monishka Allahbadi

The Jammu and Kashmir and Ladakh High Court ruled in ENGINEERING CONTROL VERSUS BANDAY INFRATECH PVT.LTD. that only when the notice of demand under section 138 of the Negotiable Instruments act is delivered to the correct address, can it be said that the drawer of a cheque has received the legal notice. The judge emphasized that no such inference could be drawn if the notice was delivered to the incorrect address.

The bench, which also included Justice Sanjay Dhar, made the observation in a case where the petitioner had refuted the respondent’s complaint against him for a violation of Section 138 of the Negotiable Instruments Act (hereinafter referred to as “the NI Act”) before the Court of Judicial Magistrate, Srinagar. The petitioner also disputed a ruling that the Magistrate had made against him in light of the offense. The petitioner’s attorney claimed that the respondent was unaware that the address where the statutory notice of demand was sent is incorrect as a result of which the petitioner had not received it. The legal representative went on to claim that despite the petitioner being a Delhi resident, the respondent/complainant delivered the notice of demand to the wrong location in Jammu. Therefore it cannot be claimed that a violation of Section 138 of the NI Act has been established against the petitioner without first providing him with a statutory notice of demand. He further added that if he doesn’t pay the required sum within the allotted period and he isn’t served with notice of demand, he is not subject to the presumption under Section 138 of the NI Act.

The respondent’s attorney refuted the accusations, claiming that the complainant is only obligated by law to provide a notice of demand and that delivery of the notice is not necessary. He said that the petitioner’s address was contained in the agreement that the parties had signed and the notice was sent to the same address.

The court observed that three conditions have to be met for the applicability of section 138 of the NI Act. It was observed:

“..Proviso to Section 138 of the NIA Act stipulates that three conditions must be satisfied before dishonour of a cheque can constitute an offence and become punishable. The first condition is that the cheque ought to have been presented before the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque must make a demand for payment of the amount of money by giving a notice in writing to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding return of the cheque as unpaid. The third condition is that the drawer of such a cheque should have failed to make payment of the said amount of money to the payee or as the case may be to the holder in due course of the cheque within fifteen days of the receipt of the said notice. It is only upon the atisfaction of all the aforesaid three conditions that an offence under Section 138 can be said to have been committed by the person issuing the cheque.”

It was further observed after relying on several judgments of the Supreme Court that a notice must be received by the accused and this can only be inferred if it has been dispatched to the correct address which evidently has not happened in this case.

The bench stated while allowing the petition and dismissing the complaint that the evidence on record clearly suggests that the statutory notice of demand was sent by the respondent/complainant at a wrong address, so the presumption of receipt of notice by the petitioner/accused does not arise because the requirement of sending a statutory notice in order to file a complaint under Section 138 of the NI Act has not been met in this case.

-Report by Rhea Mistry

On 27th January 2021, a judgment was passed in a writ petition case Mohammad Latief Magrey v. Union of India and others. In that case, Mr. Mohammad Latief Magrey’s son was encountered in the Hyderpora Encounter. An appeal was filed by the Union of India and others against the judgment.

The respondent i.e., Mr. Mohammad Latief Magrey had asked for his deceased son’s body in the initial petition. He had asked for the body to complete the burial rituals after the bodies of two other deceased who were encountered along with his son were exhumed and returned to their families. Challenging the decision of the judgment, the appellants’ had filed an appeal to the Jammu & Kashmir High Court.

The learned counsel of the Union of J&K put forward that the body of the deceased should not be returned to the family as he was a suspect terrorist and was killed in an encounter while he was attacking the area in Hyderpora.

The respondent herein presented that his son, Amit Magray, had been killed in a police encounter in Hyderpora, Kashmir on 15th November 2021. The dead body of the deceased son was not given to the family. This led to infringement of Rights to the protection of life and personal liberty as provided in Article 21 of the Constitution of India. The article gives the right to a decent burial of a dead body.

Mr. Mohammad Latief Magrey asserted that he and his family had been awarded for bravery in keeping the militants away from the area. His deceased son was also one of those who would fight against the militants. After having some financial crisis and not being able to study further, the deceased, Amit Magray, to support his family moved to his
sister’s place in Kashmir and started to work for Dr. Mudasir. Amit was working for Dr. Mudasir till 14th November 2021 and talked regularly with the family till then. After that, the family did not hear from him and had no idea of his whereabouts. They directly heard from the police station on 16th November 2021 that their son has been killed in a police encounter.

After reaching the police station, the father and family of the deceased were informed that their son was a militant and was killed with two others by the police force in an encounter in Kashmir.

The police Officials had buried the body of Amit Magray with all the rites performed and refused to exhume the body. They also stated the reasons for the bodies of the other two associates being returned was because it was revealed that one, Dr. Mudasir was killed by another foreign militant, and the other Altaf Bhat was killed during a cross-firing in the encounter. In the appeal by the Union of J&K, they contented that exhumation of the body is not possible as the body starts decomposing after its burial. The appellants did not take into consideration the family background and had fought against militants.

Following the parties’ pleas, the court ordered the Union of J&K to exhume and return the body of the deceased Amit Magray to his family in a speedy process. They were also ordered to pay a compensation of Rs. 5 Lakhs to the family of the deceased.

The learned counsel of the appellant asserted that the writ court failed to view the case from all the relevant angles and requested to dismiss the petition. The respondent had given up the request for the exhumation of the body so the court allowed them to perform Fatiha Khawani at Wadder Payeen Graveyard after midnight to avoid large crowds.

After taking into account and examining the situations and facts, it was held that the family would not be returned the body of the deceased but be permitted to perform their religious burial rites at the grave where the body is buried with a maximum of 10 people. The compensation of Rs.5 Lakhs payable to the respondents stands upright and this decision should not form a precedent for future similar cases.

As of the aforesaid, the appeal has been dismissed.