The main legal point established in the judgment is that the presumption under section 139 of the Negotiable Instrument Act should not be raised without establishing the existence of a legally enforceable debt, and the dishonor of a cheque is primarily a civil wrong.

JUDGMENT :

SINDHU SHARMA, J.

1. Petitioner has filed this petition for quashing of proceedings initiated against him under section 138/142 of the Negotiable Instrument Act alleging dishonor of cheque No. 052001 dated 01.07.2013 for Rs. 4,20,000/-. The complaint was presented to the Chief Judicial Magistrate, Srinagar on 31.07.2013, who transferred the same to Forest Magistrate on the same day, and after recording the statements of the complainant-respondent and his son-Riyaz Ahmad Langoo, the trial court summoned the accused directing as under:

“Heard the counsel for the complainant. Perusal of the record of the complaint which has supported the contents of the complaint. As such, there is a material on record to proceed against the accused for offence under section 138/NI Act disclosed against the accused. The cognizance u/s 138/NI Act is hereby taken against the accused. Office is directed to issue summon/notice through Police Station concerned to the accused for his appearance. The complainant is directed to get summon/notice from the court and assist S.O. Taamilat for service of the accused. Put up on 30.08.2013.”

2. The complaint during the period it remained pending, affidavits of Muneeb-U-Zamaan Pehalivi, Altaf Ahmad Bhat and Riyaz Ahmad Langoo and complainant in support of the allegation made in the complaint were filed. The Bank Manager who was also named as one of the witnesses by the complainant could not be examined while all the affidavits of prosecution witnesses were filed by 16.12.2013 but no effective steps were taken by the court for the cross-examination of the witnesses until 18.11.2015 when notice of this court was received regarding the stay of further proceedings. So nearly two years were spent by adjourning the case without taking effective steps to decide within six months as it was summon case.

3. Be that as it may, the petitioner has questioned the maintainability of the complaint on two counts, first, that no case is made out on the basis of the contents disclosed, as the processes could not be issued. Secondly, there was no application of mind by the court below before issuing the process, which is an abuse of the process of law.

4. The other ground is that as per the license deed dated 21.05.2013, the petitioner was licensee of the Guest House for 11 months on payment of license fee of Rs. 12,30,000/- which had to be paid in three installments as per the agreement. Copy of the agreement is annexed with the petition and the respondents have not denied the contents made in the affidavit.

5. It has been found that respondent has submitted his affidavit alongwith three affidavits of his witnesses. It is the admitted case of the complainant-respondent that he is the owner of New Zeenat Guest House. Para 1 of his affidavit dated 30.12.2013 reads as under:

“1. That I am the proprietor of the New Zeenat Guest House Dalgate Srinagar and the accused approached me for granting license for running his business in my aforesaid Guest House and I accepted his request and I licensed my aforesaid Guest house on license for 11 months against license fee of Rs. 12,30,000/- payable by the accused in three installments of Rs. 4,00,000/- and Rs. 4,20,000/- and Rs. 4,10,000/- and in liquidation of the license fee the accused issued cheque No. 052001 dated 1-7-2013 for amount of Rs. 4,20,000//- in favour of the complainant payable at J&K Bank Branch B.P. Batamaloo Sgr.”

6. Para 1 of the affidavits of his witnesses, namely, Muneeb-U-Zamaan Pehalivi, Altaf Ahmed Bhat and Riyaz Ahmed Langoo is identical to para 1 of the affidavit of the complaint-Ghulam Qadir Langoo. As all of them admit that the petitioner was licensee of Zeenat Guest house for 11 months on payment of Rs. 12,30,000/- as licensee fee payable in three installments of Rs. 4,00,000/- and 4,20,000/- and Rs. 4,10,000/-.

7. The dispute arose only when cheque No. 052001 dated 01.07.2013 was dishonoured by the bank as payment was stopped by the petitioner who has annexed a c