Manzoor Ahmad Wani vs Umar Rafiq Ganai & Others
2021 Latest Caselaw 272 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR

                                                                         Reserved on: 23.02.2021
                                                                       Pronounced on:03 .03.2021


                                                                           CRM(M) No.132/2019
                                                                             CrlM No.461/2019


                      Manzoor Ahmad Wani                                        ...Petitioner(s)

                                     Through: - Mr. M. A. Rathore, Advocate.
                      Vs.

                      Umar Rafiq Ganai & others                             ...Respondent(s)
                                     Through: - Mr. Naveed Gul, Advocate.


                      CORAM:         HON‟BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                                         JUDGMENT

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. MOHAMMAD ALTAF BHAT 2021.03.04 14:02 I attest to the accuracy and integrity of this document

CrlM No.461/2019

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

MOHAMMAD ALTAF BHAT complainant/respondent No.1, the accused persons deceived him. It is 2021.03.04 14:02 I attest to the accuracy and integrity of this document

CrlM No.461/2019

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 MOHAMMAD ALTAF BHAT 2021.03.04 14:02 I attest to the accuracy and integrity of this document

CrlM No.461/2019

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.

(Sanjay Dhar) Judge Srinagar 03.03.2021 "Bhat Altaf, PS"

MOHAMMAD ALTAF BHAT
                                         Whether the order is speaking:          Yes/No
2021.03.04 14:02
I attest to the accuracy and             Whether the order is reportable:        Yes/No
integrity of this document