Shameem Ahmad Reshi vs Royal Enterprises Industrial Estate

Sanjay Dhar, J

1) The petitioner has challenged the complaint filed by the respondent against him alleging commission of offence under Section 18 of the Negotiable Instruments Act (hereinafter referred to as the NI Act). Challenge has also thrown to the order passed by the learned Judicial Magistrate, 1st Class (Judge Small Causes), Srinagar, whereby cognizance of the complaint has been taken and process has been issued against the petitioner.

2) Notice of the petition was issued to the respondent/complainant but despite service, nobody appeared on behalf of the respondent. The trial court record was summoned and the matter has been taken up for consideration.

3) Heard learned counsel for the petitioner and perused the material on record including the trial court record.

4) It appears from the perusal of the trial court record that the respondent had filed a complaint for offence under Section 138 of the NI Act against M/S Reshi Poultry, Pulwama, M/S Reshi Food and Feeds through its proprietor Shameem Ahmad Reshi. It was alleged in the complaint that the respondent as well as the petitioner herein are dealing with poultry and cattle goods/items. It was further alleged that the petitioner purchased a number of items of aforesaid nature from the respondent/complainant, cost of which came to Rs.11,40,108/. It was averred that the petitioner/accused issued a cheque bearing No.35291927 dated 08.10.2018 for an amount of Rs.11,40,108/ drawn on J&K Bank Ltd. Kakapora, Pulwama. When the said cheque was presented by the respondent/complainant to his banker for payment, the same was dishonoured for insufficiency of funds in terms of memo dated 29.10.2018. The respondent/complainant is stated to have issued a notice of demand dated 05.11.2018 to the petitioner/accused, which was dispatched on 06.11.2018 through registered post but in spite of receipt of the said notice, the petitioner/accused did not liquidate the amount of cheque to the respondent/complainant which prompted him to file the impugned complaint against the petitioner/accused on 18.12.2018. The learned trial Magistrate after recording preliminary evidence of the respondent/complainant observed that prima facie offence under Section 138 of the NI Act is made out against the petitioner/accused and, accordingly, the process was issued against him in terms of order dated 20.12.2018 passed by the trial Magistrate.

5) The ground urged by the petitioner for impugning the complaint and the order of issuance of process against him is that the cheque, which is subject matter of the impugned complaint, has not been issued by him nor the same has been signed by him. It is contended that the account on which the cheque in question has been issued does not pertain to the petitioner. In order to substantiate the said contention, the petitioner has placed on record the statement of account, according to which account No.0054020100000595 pertains to Mr. Bilal Ahmad Reshi S/o Ab. Gani Reshi R/o Chatripora Pulwama, and not to the petitioner.

6) A perusal of para (2) of the impugned complaint reveals that the petitioner is alleged to have issued cheque bearing No.35291927 dated 08.10.2018 amounting to Rs.11,40,108/ payable at Jammu and Kashmir Bank branch office Kakapora. However, the statement of account, which has been placed on record by the petitioner, pertains to account No. No.0054020100000595 of J&K Bank Ltd. Pulwama (Main). The J&K Bank has its branch units both at Pulwama as well as at Kakapora. Therefore, from the statement of account that has been placed on record by the petitioner, it cannot be conclusively held that the cheque in question has been issued in respect of the account maintained at J&K Bank Ltd. Pulwama (Main), particularly when the complainant has specifically pleaded in the complaint that the cheque in question pertains to the J&K Bank Ltd. branch office Kakapora. The cheque that has been placed on record of the trial court also does not indicate as to on which branch the same has been drawn. In view of this position, the question whether the subject cheque pertains to the account of the petitioner or to the account of some other person becomes a triable issue which cannot be determined during these proceedings.

7) For the foregoing reasons, it cannot be conclusively stated that the petitioner has not drawn the cheque which is subject matter of the impugned complaint. However, having regard to the fact that the petitioner has in his statement recoded under Section 242 of the Cr. P. C before the trial court specifically denied having issued the cheque and he has further stated that the account in question does not pertain to him, the trial court would do well to record the statement of the witness from the concerned bank so as to ascertain as to whether or not the account, on which the cheque in question has been drawn, pertains to the petitioner. After recording of the said evidence, if the trial Magistrate finds that the account on which the cheque has been drawn does not pertain to the petitioner, he shall proceed to pass appropriate orders in accordance with law without going into other aspects of the matter.

8) The petition shall stand disposed of in above terms.

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