h475

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

(through virtual mode)

Reserved on : 12.05.2021

Pronounced on : 17.05.2021

Narinder Singh

...Petitioner(s)

Through:- Mr. Pankaj Dubey, Advocate

V/s

Sharjeel Malik

...Respondent(s)

Through:- Mr. Irfan Khan, Advocate

Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

JUDGMENT

1.

By invoking inherent powers vested in this Court in terms of

Section 482 of the Code of Criminal Procedure, the petitioner seeks to

quash order dated 20.08.2019 passed by the learned Judicial Magistrate

1^st Class, Bhaderwah [>the Trial Court?] in a complaint under Section 138

of Negotiable Instruments Act, 1881 [<the Act=] filed by the respondent

against the petitioner, whereby the Trial Court, after recording

preliminary statement of the complainant and his witnesses, has issued

process to secure presence of the petitioner for facing the trial.

2.

Briefly stated, the facts leading to the filing of instant

petition are that the respondent has filed a complaint under Section 138

CRM(M) No.387/2020

CrlM Nos.1449/2020 & 1452/2020

2 CRM(M) No.387/2020

of the Act against the petitioner on the allegation that the petitioner had

issued in his favour a cheque bearing No.005919 dated 17.07.2019 for an

amount of Rs.25,00,000/- drawn on petitioner?s account maintained with

Ellaquai Dehati Bank, Branch Bhaderwah. The respondent deposited the

said cheque for encashment in the bank on 17.07.2019 but the same was

returned with the memo that account of the petitioner did not have

sufficient funds for its encashment. The cheque was returned with the

aforesaid memo by the bank on 17.07.2019. As is claimed, the

respondent served a demand notice on the petitioner on 25.07.2019

requesting the petitioner to make the payment of the cheque amount

within fifteen days from the date of receipt of the notice. The petitioner

did not make the payment and, therefore, a complaint under Section 138

of the Act was filed before the Trial Court.

3.

The complaint was entertained and taken cognizance of by

the Trial Court, and preliminary statement of the complainant and his

witnesses in support of the complaint was recorded. The Trial Court after

considering the complaint and documents appended therewith as also the

preliminary statement of the complainant and his witness, arrived at the

satisfaction that there were sufficient grounds to proceed further in the

matter. Accordingly, vide order impugned dated 20.08.2019, process was

issued against the petitioner. It is this order of issuance of process, which

is called in question by the petitioner in this petition primarily on two

grounds:-

i)

that the complaint is not maintainable for the reason that in

the complaint the respondent has not averred that he has

3 CRM(M) No.387/2020

received the cheque in discharge of some legally enforceable

debt or liability; and

ii)

That the complaint does not contain the list of witnesses.

It is, however, not the case of the petitioner that the

complaint otherwise does not disclose commission of offence under

Section 138 of the Act and, therefore, should not have been entertained

by the Trial Court.

4.

Having heard learned counsel for the parties and perused the

record, I am of the view that the impugned order of issuance of process to

the petitioner does not suffer from any illegality or infirmity as would

call for any interference by this Court in exercise of its inherent

jurisdiction under Section 482 Cr.P.C.

5.

It true that in the complaint the respondent has not disclosed

the legally enforceable debt or