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

Koushal Kumar Padha

...Respondent(s)

Through:- Mr. Ankush Manhas, 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 27.11.2019 passed by the learned Judicial Magistrate 1^st

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

Negotiable Instruments Ac , 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 of the Act

against the petitioner on the allegation that the petitioner had issued in his

favour a cheque bearing No.005922 dated 26.07.2019 for an amount of

CRM(M) No.386/2020

CrlM No.1448/2020

2 CRM(M) No.386/2020

Rs.26,00,000/- drawn on petitioner?s account maintained with Ellaquai

Dehati Bank, Branch Bhaderwah. The respondent deposited the said

cheque for encashment in the bank on 26.07.2019 but the same was

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

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

aforesaid memo by the bank on 25.10.2019. As is claimed, the respondent

served a demand notice on the petitioner on 31.10.2019 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 27.11.2019, 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

received the cheque in discharge of some legally enforceable

debt or liability; and

3 CRM(M) No.386/2020

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 liability in di