[2026:RJ-JD:2040]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 267/2026 Resham Singh Patwari S/o Bhagwan Singh, Aged About 57 Years, Mehtab Colony Nayi Mandi Gharsana Tehsil Gharsana District Shriganganagar ----Petitioner Versus Gulzar Singh S/o Resham Singh, Satrana Tehsil Anoopgarh District Shri Ganga Nagar Raj ----Respondent For Petitioner(s) : Mr. Jitendra Mohan Choudhary Mr. Rakesh Kumar Chotia For Respondent(s) : -

HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

14/01/2026 By way of filing the present criminal misc. petition under Section 528 BNSS, the petitioner has prayed for the following reliefs:-

“It is therefore, most respectfully prayed on behalf of petitioner that this Crl. Misc. Petition be allowed and the impugned order dated 04.12.2025 (Annexure-4) passed by the Learned Judicial Magistrate, Gharsana in Criminal Case No.198/2017 may kindly be set aside and the application preferred by the petitioner may be allowed in toto. ...”

2. Learned counsel for the petitioner submitted that the respondent–complainant Gulzar Singh preferred a complaint under Section 138 of the Negotiable Instruments Act before the learned Judicial Magistrate, Gharsana, alleging inter alia that he had advanced a loan of ₹10,00,000/- to the petitioner. In order to discharge the said liability, the petitioner is alleged to have issued a cheque bearing No. 275964 dated 15.10.2016 drawn on SBBJ, Gharsana for an amount of ₹10,00,000/- in favour of the complainant. However, upon presentation, the said cheque was dishonoured on 18.10.2016 with the endorsement “Funds Insufficient”.

3. Learned counsel further submitted that since, as per the complainant himself, the cheque in question was issued towards repayment of a cash transaction exceeding ₹10,00,000/-, the petitioner moved an application before the learned trial Court under Sections 289 ST and 271 DA of the Income Tax Act, praying that the matter be referred to the Income Tax Department for investigation, as the alleged transaction is in violation of the provisions of the Income Tax Act. It was also averred in the said application that no such transaction ever took place between the parties and that the complaint under Section 138 of the NI Act has been instituted on wholly false and fabricated grounds.

4. Learned counsel submitted that the aforesaid application filed by the petitioner has been rejected by the learned trial Court on the ground that the same was intended to delay the proceedings, which is contrary to the object and mandate of the Negotiable Instruments Act. It was therefore prayed that the impugned order dated 04.12.2025 be set aside and the application filed by the petitioner be allowed in the interest of justice so as to bring the true facts on record.

5. Heard.

6. Having heard learned counsel for the petitioner and having perused the material available on record, this Court finds that the complaint filed by respondent No.2 against the petitioner under Section 138 of the NI Act is presently at the stage of final hearing. It is well settled that in proceedings under Section 138 of the NI Act, the statutory presumption under Sections 118 and 139 of the Act operates in favour of the complainant, and the burden lies upon the accused to rebut the same by raising a probable defence to establish that the cheque was not issued in discharge of any legally enforceable debt or liability.

The Hon’ble Supreme Court has, in a catena of judgments, mandated that the presumptions under Sections 118 and 139 of the NI Act must be given due effect and that proceedings under the NI Act cannot be permitted to be converted into a civil trial by compelling the complainant to prove the antecedent transaction in the first instance.

In the facts of the present case, this Court finds no illegality, infirmity, or perversity in the order dated 04.12.2025 passed by the learned trial Court warranting interference.

7. Consequently, the present criminal misc. petition as well as stay applicati