Jammu & Kashmir High Court – Srinagar Bench
Sheikh Abdul Rehman vs Ghulam Nabi Kaboo on 17 July, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
2026:JKLHC-SGR:227
HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 07.07.2026
Pronounced on: 17.07.2026
Uploaded on: 17.07.2026
Whether the operative part or full
judgment is pronounced: Full
Crl R. No.24/2026
SHEIKH ABDUL REHMAN ...PETITIONER(S)
Through: - Mr. Mujeeb Andrabi, Advocate, vice
Mr. G. A. Lone, Sr. Advocate.
Vs.
GHULAM NABI KABOO ...RESPONDENT(S)
Through: - Respondent in person.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) Through the medium of present revision petition, the
petitioner has challenged order dated 31.03.2026 passed by
the learned Chief Judicial Magistrate, Srinagar (hereinafter
“the learned trial Magistrate”), whereby application of the
petitioner under Section 142(b) of the Negotiable
Instruments Act (for short “N.I. Act“) seeking condonation of
delay in filing the complaint under Section 138 of the N.I.
Act has been dismissed.
2) It appears that a complaint under Section 138 of the
N.I. Act came to be filed by the petitioner against the
respondent initially before the Court of learned Chief
Judicial Magistrate, Handwara on 04.11.2019. The subject
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matter of the said complaint was three cheques dated
03.10.2019, 05.10.2019 and 07.10.2019 for Rs.11.00 lakhs
each drawn on HDFC Bank, Handwara. When the said
cheques were returned unpaid by the banker, a demand
notice dated 21.10.2019 came to be served by the petitioner
upon the respondents. When the respondent failed to pay
the amount of cheques despite service of demand notice, the
petitioner filed a complaint before the Court of learned Chief
Judicial Magistrate, Handwara, on 04.110.2019 alleging
commission of offence under Section 138 of the N.I. Act by
the respondent.
3) After recording the preliminary evidence, the learned
CJM, Handwara, issued process against the respondent,
who, after putting in his appearance before the learned
Magistrate, filed an application seeking dismissal of the
complaint on the ground that the same has been filed
prematurely. The application was dismissed by the learned
CJM, Handwara, on 18.10.2021, by observing that there is
no power with the Criminal Court to review its own orders.
4) The aforesaid order came to be challenged by the
respondent by way of a revision petition before the learned
Additional Sessions Judge, Handwara, who, vide his order
dated 04.06.2021, observed that the issue as to whether or
not the complaint is premature being triable in nature would
be decided by the trial court after trial of the case.
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5) Accordingly, after recording the evidence of the parties,
the learned CJM, Handwara, vide his judgment dated
28.12.2023, dismissed the complaint of the petitioner, both
on merits as also on the ground that the complaint filed by
him against the respondent was premature because during
the trial of the case it was established that the respondent
had received the demand notice on 26.12.2019, whereas the
complaint was filed on 04.11.2019, which is only after 10
days of receipt of the notice of demand.
6) The petitioner assailed the order/judgment of acquittal
of the respondent and dismissal of the complaint by way of
an appeal before this Court which was registered as CrlA(AS)
No.03/2024. This Court vide judgment dated 08.08.2025
allowed the appeal and impugned judgment dated
28.12.2023 passed by the learned CJM, Handwara, in so far
as it related to the decision of the complaint on merits, was
set aside. It was, however, held that the complaint was filed
by the petitioner prematurely before the expiry of stipulated
period of 15 days. The Court further observed that the
parties shall be free to take recourse to remedies, if any,
available to them in law.
7) Pursuant to the aforesaid order passed by this Court,
it seems that the petitioner presented a fresh complaint
before the learned trial Magistrate in respect of the same very
cheques which were subject matter of the earlier complaint
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filed before the CJM, Handwara. The fresh complaint came
to be filed before learned trial Magistrate, as according to the
petitioner, the cheques were presented for encashment
before the Jammu and Kashmir Bank Limited, Hari Singh
High Street, Srinagar. Along with the fresh complaint, the
petitioner also filed an application under Section 142(b) of
the N. I. Act, seeking condonation of delay in filing the
complaint.
8) In the application for condonation of delay in filing the
complaint, the petitioner pleaded that he was bonafidely
prosecuting the complaint before CJM, Handwara, from
04.11.2019 till 08.08.2025, when this Court held that the
complaint was premature and gave liberty to the petitioner
to avail remedies available to him under law. It was further
contended that the period spent by the petitioner in
prosecuting his earlier complaint before CJM, Handwara,
and the appeal before the High Court, is required to be
excluded while computing the period of limitation for filing
the fresh complaint.
9) The learned trial Magistrate, after inviting objections to
the application of the petitioner and after hearing the parties,
passed the impugned order, whereby application of the
petitioner under section 142(b) of the N.I. Act came to be
dismissed on the ground that the complainant has failed to
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explain the inordinate delay of more than six years in filing
the fresh complaint. The learned trial Magistrate also
observed that the earlier complaint filed by the petitioner
was dismissed by CJM Handwara on merits after conducting
full-dressed trial. Therefore, even if fresh trial is held in the
complaint, the complainant cannot improve upon the
evidence which he has already led in the previous complaint.
10) The petitioner has challenged the impugned order
passed by the learned trial Magistrate on the grounds that
the learned trial Magistrate has failed to appreciate that the
period spent by petitioner in prosecuting the complaint
before CJM, Handwara, and before the appellate court was
required to be excluded by application of Section 14 of the
Limitation Act. It has been further contented that legal
position on the issue is clear that the period spent by a
complainant in prosecuting a complaint which has been filed
prematurely has to be excluded while computing the period
of limitation for filing the fresh complaint. It has also been
contended that the learned trial Magistrate has failed to
appreciate that the findings of fact recorded by the CJM,
Handwara, in the judgment of acquittal on merits of the case
were set aside by this Court in appeal and, therefore, the
said findings of fact cannot come in the way of the petitioner
in prosecuting the fresh complaint against the respondent.
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11) I have heard learned counsel for the petitioner as also
the respondent in person. I have also gone through the
impugned order and record of the trial court.
12) So far as the observation of the learned trial Magistrate
that because previous complaint filed by the petitioner was
dismissed by the learned CJM, Handwara, on merits after
full-dress trial, as such, complainant cannot improve upon
the evidence already led, is concerned, the same is
misconceived for the reason that this Court, while deciding
the appeal against the judgment of acquittal passed by the
learned CJM, Handwara, has set aside the findings recorded
by the said court on merits. Therefore, the findings recorded
by the learned CJM, Handwara, in his order dated
28.12.2023 have no existence in the eyes of law and, as
such, cannot have any bearing on the merits of the fresh
complaint filed by petitioner.
13) The main issue which is required to be determined is
whether the time spent by the petitioner in prosecuting the
previous complaint before the court of learned CJM,
Handwara, and before this Court while prosecuting the
appeal against the judgment of acquittal passed by the
learned CJM, Handwara, is eligible to be excluded while
computing the period of limitation for filing the fresh
complaint.
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14) The aforesaid issue is no longer res integra. The
Supreme Court has, in the case of Yogender Pratap Singh
v. Savitri Pandey and anr, (2014) 10 SCC 713, while holding
that cognizance of an offence punishable under Section 138
of the N. I. Act cannot be taken on the basis of a complaint
filed before the expiry of period of 15 days stipulated in the
notice required to be served upon the drawer of the cheque
in terms of Section 138(c) of the Act, proceeded to examine
the issue whether the complainant can be permitted to
present the complaint again, notwithstanding the fact that
the period of one month stipulated under Section 142(b) of
the Act for filing of such a complaint has expired. The
Supreme Court, after examining the said issue, made the
following observations:
“41. Section 142 of the NI Act prescribes the mode and
so also the time within which a complaint for an
offence under Section 138 of the NI Act can be filed. A
complaint made under Section 138 by the payee or the
holder in due course of the cheque has to be in writing
and needs to be made within one month from the date
on which the cause of action has arisen under clause
(c) of the proviso to Section 138. The period of one
month under Section 142(b) begins from the date on
which the cause of action has arisen under clause (c)
of the proviso to Section 138. However, if the
complainant satisfies the court that he had sufficient
cause for not making a complaint within the prescribed
period of one month, a complaint may be taken by the
court after the prescribed period. Now, since our
answer to Question (i) is in the negative, we observe
that the payee or the holder in due course of the
cheque may file a fresh complaint within one month
from the date of decision in the criminal case and, in
that event, delay in filing the complaint will be treated
as having been condoned under the proviso to clauseCrl R No.24/2026 Page 7 of 10
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(b) of Section 142 of the NI Act. This direction shall be
deemed to be applicable to all such pending cases
where the complaint does not proceed further in view
of our answer to Question (i). As we have already held
that a complaint filed before the expiry of 15 days from
the date of receipt of notice issued under clause (c) of
the proviso to Section 138 is not maintainable, the
complainant cannot be permitted to present the very
same complaint at any later stage. His remedy is only
to file a fresh complaint; and if the same could not be
filed within the time prescribed under Section 142(b),
his recourse is to seek the benefit of the proviso,
satisfying the court of sufficient cause. Question (ii) is
answered accordingly.”
(Emphasis supplied)
15) From the foregoing analysis of the legal position, it is
clear that the delay in filing fresh complaint can be condoned
by excluding the period spent by the complainant in
prosecuting his previous complaint which has been
dismissed on account of its prematurity. In fact, the
Supreme Court has gone to the extent of observing that if a
payee or holder in due course of the cheque files a fresh
complaint within one month from the date of decision in the
criminal case, in that event, delay in filing the complaint will
be treated as having been condoned under proviso to
clause(b) of Section 142 of the Negotiable Instruments Act.
16) The aforesaid position of law has been reiterated and
reaffirmed by the Supreme Court in its later judgment in the
case of Gajanand Burange vs. Laxmi Chand Goyal, 2022
SCC OnLine SC 1711.
17) Reverting to the facts of the present case, the previous
complaint filed by the petitioner was decided by the learned
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CJM, Handwara, on 28.12.2023, whereafter the said order
was assailed by the petitioner by way of an appeal before this
Court, which came to be decided by this Court on
08.08.2025. In the light of the ratio laid down by the
Supreme Court in Yogendra Pratap Singh‘s case (supra),
the petitioner ought to have filed the fresh complaint within
one month of decision of the Appellate Court, i.e. within one
month from 08.08.2025. A perusal of record would show that
the petitioner had been able to get the certified true copy of
order dated 08.08.2025 on 20.08.2025 and besides this, the
petitioner had to obtain original cheques from the Court of
CJM, Handwara, so that the same could be annexed with the
fresh complaint. As per record, the said cheques were
handed over by the Court CJM, Handwara, to the petitioner
on 25.08.2025, whereafter, the petitioner filed fresh
complaint before the learned trial Magistrate on 11.09.2025.
Thus, delay in filing the fresh complaint has been properly
explained by the petitioner in the present case.
18) The learned trial Magistrate has, without going into
aforesaid aspects of the matter, proceeded to dismiss the
application of the petitioner seeking condonation of delay in
filing the complaint. The course adopted by learned trial
Magistrate clearly reflects that the said court has acted with
material irregularity and the findings recorded by the said
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court are perverse and a result of wrong appreciation of facts
and the law. The impugned order, therefore, is not
sustainable in law.
19) Accordingly, the petition is allowed and the impugned
order passed by the learned Chief Judicial Magistrate,
Srinagar, is set aside. It is further directed that the delay in
filing the fresh complaint by the petitioner before CJM,
Srinagar, shall stand condoned. The matter is remanded to
the learned CJM, Srinagar, for fresh consideration of the
complaint filed by the petitioner on its merits in accordance
with law.
20) A copy of this judgment be sent to the learned Chief
Judicial Magistrate, Srinagar, for information and
compliance.
(Sanjay Dhar)
Judge
SRINAGAR
17 .07.2026
“Bhat Altaf-Secretary”
Whether the judgment is reportable: YES/NO
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