Court must ensure prima facie case before issuing process under BNSS; failure leads to jurisdictional error.

ORDER

11.08.2025

1. The petitioner is aggrieved of the process issued by the Court of learned Chief Judicial Magistrate, Kishtwar, vide order dated 03.02.2024, whereby notice has been issued to the petitioner on a complaint filed by the respondent – Bansi Lal Shan under Section 420 of the Indian Penal Code , corresponding to Section 318 of the Bharatiya Nagarik Suraksha Sanhita , 2023 ( BNSS ).

2. The grievance of the petitioner is that the dispute raised in the complaint is purely of a civil nature and does not disclose any criminal liability. It is further alleged that the trial Court issued process without due application of mind and without following the statutory mandate.

3. Learned counsel for the petitioner submits that the complaint has been filed pursuant to observations made by the trial Court in pre-litigation proceedings (Annexure VIII), wherein the trial Court, without any statutory power, directed the respondent to file a criminal complaint.

4. The complaint on the basis of which, process has been issued reads as under:-

“ The complainant most respectfully submits as under:-

1. That the complaint is Chairman of Truck Owners Union Kishtwar and the truck operators/owners of District Kishwar are plying their trucks through this union.

2. That the work of carriage of food grains (PDS Ration) of Food Civil Supplies and Consumer Affairs for District Kishtwar was allotted to the acused by JKRTC for the year 2021-22.

3. That the accused person approached the complainant and requested to provide the Trucks for carriage of PDS Ration in Kishtwar and it was assured by the accused person hat the carriage charges as per Challan of DCS&CA will be given to complainant as and when as the concerned diriver deposits the Challan.

4. That the complainant provided the near about 40 vehicles/Trucks to the accused person and accordingly the PDS Ration was transported from Kishtwar to different locations as per the Challan of PCS&CA during the year 2021-22.

5. That all the challans amount of Rs.6137394/- (Rupees sixty one lac thirty seven thousand three hundred and ninety four only) was deposited by the complainant under proper receipt through Depot manager SRTC Kishtwar, under proper receipt (Photo copy of receipt is annexed herewith).

6. That the accused has received the entire amount of Rs.

6137394/- from the JKRTC, but has paid just Rs. 200000/- (Twenty Lac only) to complainant, with criminal intention to cheat the complainant to the tune of Rs. 4137394/- on the name illegal commission.

7. That when the complainant asked the accused about this fraud, the accused person abuses the complainant and threatened to eliminate him.

8. That the accused is influential and head strong person having no care of law and openly deposed that the accused have good liaison with higher authorities, and no one can do any action against him. The accused also threatened the complainant to kidnap him whenever the complainant crosses limits of Kishtwar.

9. Tat the complainant have witnesses who are ready to depose truth before the Hon’ble Court. The list of some witnesses is mentioned below. The complainant reserves his right to produce other witnesses at appropriate stage.

Affidavit in support of complaint is annexed herewith.

It is therefore, prayed that the accused person may kindly be prosecuted and punished under law to meet the ends of justice.

5. The substance of the complaint filed by the respondent is that he, being Chairman of Truck Owners Union, Kishtwar, provided about 40 trucks for transportation of PDS ration in District Kishtwar during the year 2021-22 on the assurance of