The central legal point established in the judgment is the requirement for necessary allegations in the complaint to establish the individual's liability in his capacity as Chairman of the Trust and the discharge of legally enforceable liability by the Trust under Section 138 of the Negotiable Instruments Act.

1. The petitioner seeks quashing of order dated 03.11.2007 passed by learned CJM Kathua on the complaint filed by respondent against petitioner herein by virtue whereof the trial Court issued process against the petitioner for offence under Section 138 of Negotiable Instruments Act. Invoking jurisdiction of this Court under Section 561-A Cr.PC, the petitioner prays for quashing of complaint as well as the proceedings before the trial Court.

2. Allegedly petitioner, in discharge of past liabilities, issued check No. 11631010 dated 03.09.2007 for sum of Rs. 1,00,000 drawn at J&K Bank Kathua in favour of respondent herein which on being presented in the Bank was dishonoured and returned on 15.09.2007 with endorsement of insufficiency of funds in the account of petitioner. Respondent issued statutory notice of demand to petitioner on 07.10.2007 which was claimed to have been served upon petitioner on 21.09.2007 (date as reflected in the complaint, otherwise it should have been 21-10-2007). Respondent filed the complaint under Section 138 of NI Act on 03.11.2007 and on the same date, learned CJM Kathua, after examining the respondent under Section 200 Cr.PC, took cognizance of offence under Section 138 of NI Act against petitioner herein and issued process against him which has been assailed in the present proceedings.

3. The impugned order dated 03.11.2007 directing issue of process against petitioner herein under Section 138 of NI Act has been assailed on the ground that the trial Court has overlooked the fact that the cheque in question has not been issued by the petitioner in his personal capacity. It is contended that the cheque in dispute was drawn by M L K Education and Welfare Trust and signed on behalf of the Trust by the Chairman. Thus, it is contended, the cheque so drawn was of account maintained by the M L K Educational and Welfare Trust and not of the account maintained by the petitioner. It is further contended that the Id. Trial Court has construed the liability of the Trust as that of the petitioner least realizing that liability under the said cheque was that of the Trust and not personal liability of the petitioner.

4. Heard learned counsel for the parties. Learned counsel for the petitioner submits that the impugned order is not sustainable as criminal liability of a Trust could not be fastened against the individual even if that individual was managing the affairs of the Trust unless the Trust was arrayed as accused in the complaint. He further submits that the petitioner is being prosecuted without there being any legally enforceable debt against the petitioner. It is submitted that in absence of any allegation in the complaint that it was the liability of the Trust which was sought to be discharged by way of the cheque in question, complaint against the petitioner in his individual capacity was nothing but the abuse of the process of law. Per contra, learned counsel for respondent submits that the petitioner having issued the cheque in his capacity as Chairman of M L K Educational and Welfare Trust, Kathua was liable for penal action and the factum of petitioner being Chairman of the aforesaid Trust has been specified in the notice of demand dated 25.09.2007 though the aforesaid Trust has not been arrayed as accused in the complaint.

5. Learned counsel for the parties have referred to a host of judgments which deal with the import of Section 141 of NI Act. Since in the instant case, the issue does not relate to commission of offence by a Company, the authorities cited are not relevant and need not be referred to.

6. Offence under Section 138 of Negotiable Instruments Act is committed when the Cheque issued in discharge of legally enforceable liability is dishonoured. It is indisputable that in the instant case the Cheque was issued by Chairman of M L K Educational and Welfare Trust, Kathua. The Cheque bears the seal of the Chairman of the Trust which in itself is sufficient to demonstrate that the dra