Manzoor Ahmad Wani vs Umar Rafiq Ganai And Others

1) The petitioner has challenged criminal complaint filed by respondent No.1 for offences under Section 420 RPC read with Section 138 of Negotiable

Instruments Act against the petitioner and respondent No.2 and 3, as also the order dated 03.04.2019 passed by learned Judicial Magistrate 1st Class,

Tral, whereby process has been issued against the petitioner.

2) It is case of the petitioner that he is not directly or indirectly involved with the job of consultancy with which respondent No.1 was allegedly having

certain transaction nor has he issued the cheque which is subject matter of the complaint before the trial Magistrate. On this basis, it is contended that

the allegations made in the complaint against the petitioner herein do not disclose commission of any offence by him.

3) Per contra, respondent No.1 has contended that the Magistrate at the stage of taking cognizance and summoning, is not required to evaluate the

merits of the material or evidence in support of the complaint. If a perusal of the complaint discloses that, prima facie, offences are alleged against the

respondent (s), the process has to be issued and the same cannot be stifled by the High Court in exercise of its jurisdiction under Section 482 Cr. P. C.

The respondent No.1 has relied upon the judgment of Supreme Court in Kamal Shivaji Pokarnekar v. State of Maharashtra and others, AIR 2019 SC

847.

4) I have heard learned counsel for the parties and perused the material on record including the trial court record.

5) In the complaint filed by respondent No.1 against the petitioner and respondent Nos.2 and 3, it has been alleged that the accused persons are

running a job consultancy under the name and style of „M/S Unique Job Placement‟. The said job consultancy is alleged to have issued an

advertisement notice in newspaper regarding availability of jobs outside the Country and in response to the same, the petitioner is alleged to have

approached of „M/S Unique Job Placement‟ and he was apprised about availability of the job for the post of Coffee Boy in Saudi Arabia by

respondent No.2. It is further alleged that the respondent No.1 was charged an amount of Rs.1,50,000/ as service charges and consultation fee and he

was offered job of a Sweeper which was not as per the promise made by the Consultancy. Thus, according to the complainant/respondent No.1, the

accused persons deceived him. It is further alleged that after serving a number of legal notices upon the accused persons, a cheque bearing

No.179535 dated 13.02.2019 for Rs.30,000/, drawn on J&K Bank, was issued by the accused in favour of respondent No.1. When the said cheque

was presented with the banker, the same was dishonoured for insufficiency of funds. Thus, according to respondent No.1, the accused persons have

committed offences under Section 138 of Negotiable Instruments Act and Section 420 RPC. The respondent No.1/complainant made a preliminary

statement before the trial Magistrate in support of the aforesaid allegations.

1) In the complaint it is alleged that the accused persons happen to be the partners/account holders of „M/S Unique Job Placement‟. The petitioner

has placed on record a copy of the registration certificate issued in favour of „M/S Unique Job Placement‟, which reflects that the said

establishment is a proprietary concern owned by Mr. Sajad Majeed, the respondent No.3 herein. The statement of account issued by the banker of

„M/S Unique Job Placement‟ shows the name of respondent No.3 as its proprietor. The aforementioned material is not in dispute. From this

material, it is clear that the establishment, with which respondent No.1/complainant is alleged to be having transaction which formed the basis of the

complaint, is a proprietorship concern owned by respondent No.3 and it is not a partnership firm as alleged in the complaint. There is an averment

made in the complaint that the respondent No.2, Nadia Sajad, had represented „M/S Unique Job Placement‟ while offering the job for the post of

Coffee Boy to the complainant. Thus the complaint contains specific allegations against the respondent No.2 and 3. However, the same cannot be said

about the petitioner herein. There are no specific allegations against the petitioner either in the complaint or in the preliminary statement of the

complainant. The material on record, particularly the bank statement and the registration certificate, substantiates the contention of the petitioner that

he is not directly or indirectly involved with the job consultancy with which the complainant had the transaction.

2) Thus, considering the contents of the complaint along with material on record, it can safely be stated that the involvement of the petitioner herein is

not even, prima facie, established and no offence can be stated to have been made out against him. That being the case, the complaint as well as the

order issuing process as against the petitioner herein deserves to be quashed.

3) For the foregoing reasons, the petition is allowed and the impugned complaint and order dated 03.04.2019, to the extent of petitioner herein, are set

aside. However, the trial court is at liberty to proceed against other accused in accordance with law.

4) A copy of this order be sent to the learned trial court for information and compliance.