The court emphasized that mere allegations of illegitimacy in a loan do not invalidate issued cheques under the NI Act, particularly when the cheques' authenticity is undisputed.

Order

09/07/2025 By way of filing the instant criminal misc. petitions under Section 528 BNSS, the petitioner has prayed for the following reliefs:-

“It is, therefore, most respectfully and humbly prayed that this Misc. Petition may kindly be allowed and the order impugned dated 14.05.2025 may kindly be quashed and set aside and the application preferred by the petitioner may kindly be allowed in the interest of justice;

Any further, consequential and/or other order may kindly be passed in the interest of justice.”

2. Learned counsel for the petitioner submitted that respondent No.2- Hinglaj Dan, filed a complaint under Section 138 NI Act against the petitioner before the learned NI Court No.5, Jodhpur alleging inter alia that the petitioner is engaged in property business and took multiple loans from the complainant for business purposes. On 26.06.2020 as per the complainant- respondent No.2 and the present petitioner- accused came together and calculated the total outstanding dues at Rs.2,38,71,000/- (Rs.1.26 Crore principal + Rs.1.12 Crore interest), which the petitioner acknowledged as well as confirmed vide a written agreement. The petitioner thereupon, issued two cheques bearing Cheque No.133927 dated 31.12.2020 for Rs.1.20 Crore and Cheque No.133928 dated 31.03.2021 for Rs.1.18 Crore in the name of respondent No.2- complainant. When the cheques were presented for clearance, they got dishonored due to the petitioner- accused having issued ‘Stop Payment’ instructions to the bank, despite availability of sufficient funds.

3. Learned counsel for the petitioner submitted that a false complaint has been filed against him. The respondent No.2- complainant is a government servant and, therefore, it is not possible for him to advance such a huge sum of loan to the petitioner. He submitted that the Income Tax Returns of the complainant clearly indicate that he does not have enough income to advance such a huge sum of loan to the petitioner. Drawing further attention of the Court towards the documents attached with the case file, learned counsel submitted that the complainant has admitted that the alleged loan amount was not his own, but was given by his mother i.e. respondent No.1. Learned counsel submitted that in the aforesaid circumstances, an application was filed by the petitioner under Section 311 Cr.P.C. for summoning the bank manager as well as income tax officer who could clarify as to how such a huge sum of loan amount could be advanced to the petitioner by the respondent No.2, despite being a government servant.

4. Learned counsel submitted that the learned trial Court, without considering any arguments advanced before it on behalf of the petitioner has erroneously, by the impugned order dated 14.05.2025 rejected the application filed on his behalf under Section 311 Cr.P.C.

5. Heard learned counsel for the petitioner at Bar. Perused the material available on record.

6. This Court upon a careful perusal of the case file finds that neither the signatures of the petitioner upon the issued cheques nor the bank return memo are in dispute. It is also not the case of the petitioner that the cheques were dishonored due to signature mismatch. Normally, in a case under Section 138 NI Act, Court may order for summoning bank manager as witness where their testimony is necessary to establish or clarify bank statements, return memos, certified copies, forgery or unauthorized issuance of cheques and signatures mismatch etc. The order for summoning a bank official or income tax officer cannot be passed in a routine manner to conduct fishing inquiry in the matter.

Applications filed before NI Court for summoning witnesses only with a view to protract the trial a