Nasir Ahmad Sheikh vs S.Mohan Singh

Petitioner has filed this petition seeking quashing of the proceedings initiated by learned Judicial Magistrate 1st Class (3rd Additional Munsiff),

Srinagar vide his order of October 20, 2007 on respondent's complaint under Section 138 of the Negotiable Instruments Act.

Appearing for the petitioner, his learned counsel submitted that the learned Magistrate has erred in issuing warrant of arrest against the petitioner

even before considering the respondent's complaint as directed by this Court while disposing of petitioner's earlier 561A petition no. 21/2006 on

12.07.2007, and that, the process issued on respondent's complaint against the petitioner was even otherwise illegal, in that, the complaint did not

disclose commission of offence under Section 138 of the Negotiable Instruments Act against the petitioner.

Learned counsel further submitted that the dispute between the parties to the complaint being purely of a civil nature, resort to the criminal law

by the respondent was an abuse of the process of court, which warrants quashing of the proceedings before the learned Judicial Magistrate.

Refuting the above submissions, respondent's learned counsel submitted that the order passed by the learned Magistrate issuing process against'

the petitioner was in accordance with law and the pleas projected by the petitioner to dispute the facts stated in the complaint cannot be

considered for adjudication unless the petitioner enteres his defence in the complaint at the appropriate stage during the trial of the case.

I have considered the submissions of learned counsel for the parties, perused the complaint, the order passed by the learned Magistrate on

October 20, 2007 and the other material placed on the records by the petitioner.

Petitioner's learned counsel appears to be right in saying that the learned Magistrate had erred in issuing warrant of arrest against the petitioner

even before considering the case for issuance or otherwise of process against the petitioner, as directed by this Court vide order of July 12, 2007,

in that, unless the respondent was found, by the Magistrate, to have made out a case for issuance of the process against the petitioner, he had no

jurisdiction to summon the petitioner and that too by issuance of a warrant of arrest. The order passed by the learned Magistrate on September

29, 2007 issuing warrant of arrest against the petitioner is thus held to be illegal and unjustified.

Merely because the Magistrate had erred in issuing warrant of arrest against the petitioner before considering the respondent's case for issuance

or otherwise of process against the petitioner, would not, of itself, render its subsequent order unsustainable, as argued by the petitioner's learned

counsel, for, the validity of the order questioned in this petition would not be affected by the Magistrate's order issuing warrant of arrest against the

petitioner. The order needs to be examined on its own merit.

After examining the complaint, the material placed on the records and considering the preliminary statements of the complainant and his witness,

learned Magistrate, has recorded a finding that the material available on the records primafacie indicated commission of offence punishable under

Section 138 of the Negotiable Instruments Act by the petitioner.

After going through the copy of the complaint and other documents, placed on the records by the petitioner, I am not in a position to record any

such finding, as suggested by the petitioner's counsel, that the facts appearing in the respondent's complaint, supported by his preliminary evidence,

are untrue and hint at the existence of a civil dispute alone between the parties to the complaint, in the absence of any conclusive evidence or

material placed on records by the petitioner to justify such a finding.

Petitioner's learned counsel's submission, that the petitioner neither owed any amount to the respondent nor had he issued the cheque in

question to the respondent, is a plea purely factual in nature, which needs to be examined by the trial Magistrate during the trial of the case, on the

basis of the evidence which the petitioner may produce to support his pleas or which otherwise appears from the evidence of the

respondentcomplainant and not by this Court, particularly when there is no conclusive evidence or material on records to accept the petitioner's

plea.

No case indicating abuse of the process of Court has thus been made out by the petitioner justifying interference with the criminal proceedings

initiated on respondent's complaint.

There being no merit in the petition, it is, accordingly, dismissed.