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2009 DIGILAW 383 (JK)

Nasir Ahmad Sheikh v. S. Mohan Singh

2009-07-31

J.P.SINGH

body2009
1. Petitioner has filed this petition seeking quashing of the proceedings initiated by learned Judicial Magistrate Ist Class (3rd Additional Munsiff), Srinagar vide his order of October 20, 2007 on respondents complaint under Section 138 of the Negotiable Instruments Act . 2. 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 respondents complaint as directed by this Court while disposing of petitioners earlier 561-A petition no.21/2006 on 12.07.2007, and that, the process issued on respondents 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. 3. 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. 4. Refuting the above submissions, respondents 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. 5. 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. 6. Petitioners 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 un-justified. 7. 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 un-justified. 7. Merely because the Magistrate had erred in issuing warrant of arrest against the petitioner before considering the respondents case for issuance or otherwise of process against the petitioner, would not, of itself, render its subsequent order unsustainable, as argued by the petitioners learned counsel, for, the validity of the order questioned in this petition would not be affected by the Magistrates order issuing warrant of arrest against the petitioner. The order needs to be examined on its own merit. 8. 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 prima-facie indicated commission of offence punishable under Section 138 of the Negotiable Instruments Act by the petitioner. 9. 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 petitioners counsel, that the facts appearing in the respondents 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. 10. Petitioners learned counsels 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 respondent-complainant and not by this Court, particularly when there is no conclusive evidence or material on records to accept the petitioners plea. 11. 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 respondents complaint. 12. There being no merit in the petition, it is, accordingly, dismissed.