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2019 Supreme(J&K) 2
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
DHIRAJ SINGH THAKUR AND SANJEEV KUMAR, JJ.
Baljeet Singh - Petitioner
Versus
Kulbir Singh - Respondent
561-A No.661 of 2017, IA No.1 of 2017
Decided on : 14-01-2020
Advocate Appeared:
For the Petitioners:Mr. B. S. Salathia, Sr. Advocate with Ms. Parkhi Parihar, Advocate
For the Respondents:Mr. Sandeep Singh, Advocate
Headnote:
Negotiable Instruments Act, 1881 - Section 138 – Criminal Procedure Code, 1973 - Section 561-A - Jammu and Kashmir High Court Rules, 1999 - Rule 138(3) - Payment stopped by drawer - Cheque was again presented - It was next asserted in complaint that notice was served upon petitioner informing him of dishonoring of cherub and that complainant should ensure that requisite amount would be arranged and that cherub would be presented again - On that premise cherub was again presented but same was again returned with memo with endorsement Payment stopped by drawer – Held Courts on one hand should not encourage such practice but on other cannot also travel beyond its jurisdiction to interfere with proceeding which is otherwise genuine - Courts cannot also lose sight of fact that in certain matters both civil proceedings and criminal proceedings would be maintainable - Considering facts and circumstances of present case on touchstone ratio of aforementioned judgments it can be seen that defense set up by petitioner cannot be made basis for quashing proceedings pending before Court of learned Additional Massif Jammu Section Negotiable Instruments Act read with Section - Reliance placed by counsel for petitioner on Retirement cum Partnership Deed executed on day of March is only fact which may be required to be proved during course of trial whose evidentiary value would be evaluated then by Court to see as to whether petitioner had successfully rebutted presumption which Section creates in favor of complainant respondent herein - It would be premature for this Court to quash proceedings based only on facts which have been highlighted in petition and were urged by learned counsel for petitioner during course of arguments and would even otherwise go contrary to law laid down by Apex court in judgments discussed hereinabove – Petition dismissed
JUDGMENT :
1. The present petition has been filed under Section 561-A Cr PC against the order dated 02.12.2016, whereby the Court of learned 3rd Additional Munsiff (JMIC) Jammu has taken cognizance on a complaint filed by the respondent/complainant under Section 138 of the Negotiable Instruments Act, 1881 (in short “the Act”) read with Section 420 of the RPC.
Briefly stated, the material facts are as under:-
2. A complaint was filed by the complainant/respondent herein before the Court below, in which it was alleged that the cheque issued by the petitioner for an amount of Rs.24 lacs given on account of discharge of a liability, which the petitioner herein owed towards the complainant on account of their Stone Crushing business had bounced.
3. In the complaint, the complainant had asserted that the cheque was dated 05.07.2016 and was dishonoured by the Bank with the remarks “Payment stopped by drawer” and the same was returned to the petitioner with a memo dated 27.09.2016. It was next asserted in the complaint that a notice was served upon the petitioner, informing him of dishonouring of the cheque and that the complainant should ensure that the requisite amount would be arranged and that the cheque would be presented again. On that premise, the cheque was again presented, but the same was again returned with a memo dated 03.10.2016 with the endorsement “Payment stopped by the drawer.”
4. According to the complainant, another notice was issued through his counsel dated 25.10.2016, through registered A/D, requesting him for payment of the amount within fifteen days from the date of receipt thereof. The said notice is alleged to have been served upon the correct residential address of the accused, which was not received deliberately. It was in those circumstances that the complaint was filed before the Court of competent jurisdiction.
5. By virtue of order dated 02.12.2016, the learned 3rd Additional Munsiff (JMIC) Jammu took cognizance of the matter and issued summons for the appearance of the accused. Needless to say that the Court below recorded its satisfaction that there existed sufficient grounds for proceeding against the accused for the offence under Section 138 of the Act. It is against this order that the present petition has been filed.
6. With a view to question the order impugned, learned senior counsel for the petitioner laid a lot of stress on the fact that the entire complaint filed by the complainant/respondent herein was without any basis, as there was no debt, which was to be discharged by the petitioner towards the complainant herein, much less was the amount of Rs. 24 lacs payable to the complainant. Reliance was placed upon Retirement-cum-Partnership Deed executed on 4th day of March, 2016 between the partners, who were either retiring or who were being inducted into the partnership business of the Stone Crusher, being run in the name and style of M/s R. K. Stone Crusher, Sahar Khud Kathua.
7. It was urged that by virtue of the aforementioned deed, the complainant was one of the two retiring partners, who had specifically agreed that they were retiring as partners after settlement of their accounts in the joint business. Learned senior counsel tried to emphasize that once the retiring partner, i.e., the complainant had recorded his satisfaction regarding the settlement of accounts on 04.03.2016, there was no occasion for him to claim an amount of Rs. 24 lacs from the petitioner through a cheque dated 05.07.2016.
8. It was further urged that the petitioner had infact lost six (06) cheques, which were signed by him earlier, one of which was presented by one Jyoti Rani, one of the partners in the partnership deed. An FIR was also stated to have been registered by the said partner against the petitioner, which has since been stayed by a Coordinate Bench of this Court in proceedings under Section 561-A Cr PC. The petitioner also claimed to have registered an FIR in regard to the missing cheques with Police Station, Sujj
