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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SANJAY PARIHAR
Deepak Bawa Sharma – Appellant
Versus
Asif Iqbal – Respondent
ORDER :
Sanjay Parihar, J.
1. Heard learned counsel for the parties at length and perused the record.
2. The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter, “Cr.P.C”), seeking quashing of complaint proceedings pending before the Trial Court under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter, “the Act”).
3. The factual matrix, as emerging from the record, reveals that the respondent/complainant instituted a complaint under Section 138 of the Act, alleging dishonour of cheque to the tune of Rs.35,00,000/-. It is stated that the petitioner was engaged in construction of villas at Sainik Colony, Jammu, and the complainant had booked one villa for a consideration exceeding Rs.35,00,000/- which transaction failed to fructify. In discharge of the alleged liability, the petitioner is stated to have issued a cheque of Rs.35,00,000/-, which, upon presentation, was dishonoured, resulting in initiation of proceedings under Section 138 of the Act.
4. The record further indicates that the petitioner has appeared before the Trial Court, participated in the proceedings, and cross-examined the complainant’s witnesses. It is not
Dishonour of cheque – In exceptional circumstances, Court may take notice of attending circumstances to conclude that continuance of proceedings would amount to abuse of process of Court, or where qu....
The presumption of a legally enforceable debt under the Negotiable Instruments Act remains until disproven, and the determination of such issues is a matter for the trial court.
The issuance of a cheque raises a statutory presumption of liability under the N.I. Act that can only be rebutted through evidence in a trial.
Point of law: Question whether a post-dated cheque is for “discharge of debt or liability” depends on the nature of the transaction.
High Courts should not quash complaints under Section 138 before trial, safeguarding the process for evaluation of evidence.
It is well settled that Section 482 Cr.PC endows restrictive jurisdiction, which has to be exercised in accordance with law based upon facts scenario of each case.
Liability for cheque issuance under Section 138 of the Negotiable Instruments Act cannot be determined at the quashing stage and requires evidentiary support.
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