Manzoor Ahmad Khan vs Avtar Singh
2023 Latest Caselaw 1317 j&K/2

                                                     178
                                                      (Supplementary list)
     HIGH COURT OF JAMMU &KASHMIR AND LADAKH
                AT SRINAGAR
                                                     CRM (M) No. 493/2022
                                                                      C/w
                                                     CRM (M) No. 492/2022

Manzoor Ahmad Khan
                                                           ..... Petitioner (s)

                        Through:         Mr. Sheikh Manzoor, Adv.
                                   V/s
Avtar Singh
                                                           ..... Respondent(s)

                        Through:         Mr. Shuja ul Haq, Adv.
CORAM:
              Hon'ble Mr. Justice Rajnesh Oswal, Judge.

                                   ORDER

13.10.2023

1. CRM(M) No. 493/2022:

2. The petitioner has impugned criminal proceedings in complaint titled

Avtar Singh Vs. Manzoor Ahmad Khan pending before the court of

Chief Judicial Magistrate Kargil under Section 138 of the Negotiable

Instrument Act and also the order dated 09.09.2022 whereby the

process has been issued against the petitioner. It is stated that the

petitioner intended to sell a plot of land measuring 10 marlas falling

under Khasra No. 896/21 Khatta No. 574 Khewat No. 218 to

respondent situated at Mozai Khushipora Tehsil central, Shalteng

against the consideration amount of Rs. 35 lacs and the respondent

made part payment of Rs. 15 lacs and agreed to pay balance Page |2 CRM (M) No. 493/2022 C/w CRM (M) No. 492/2022

consideration before the execution of the formal sale deed. The parties

had entered into agreement to sell which is placed on record as

Annexure-II to the petition.

3. It is stated that as per the stipulation of the said agreement, respondent

was required to make whole payment before the execution of the sale

deed but the respondent showed reluctance in making balance payment

as a result of which, a formal sale deed could not be executed. In the

meanwhile, some complaint was filed before District Administration

Srinagar as also before the Divisional Commissioner Srinagar in respect

of demarcation and segregation of the land under Section 5 Shamilat

Deh measuring 43 kanals comprising Survey No. 896/281 situated at

Khushipora Tehsil Central Shalteng. Divisional Commissioner,

Kashmir vide order dated 28.02.2022 directed Deputy Commissioner to

conduct demarcation and it was also ordered that till the demarcation is

undertaken no revenue extract be issued and status quo be maintained.

As the formal sale deed could not be executed under aforementioned

circumstances, the respondent requested the petitioner to secure his

interest by giving him cheques as security without mentioning any date.

The petitioner demonstrating his bonafid handed over couple of

cheques without mentioning any date, as security to the respondent in

the month of July, 2022 which have been misused by the petitioner by

filing a complaint before the court of Chief Judicial Magistrate, Kargil.

Page |3 CRM (M) No. 493/2022 C/w CRM (M) No. 492/2022

4. The petitioner has sought quashing of the complaint as also the order

dated 09.09.2022 whereby process has been issued against the

petitioner on the ground that cheques were not issued in discharge of

any legal debt or liability but as a security but the respondent by

misusing the same has initiated the proceedings under Section 138 of

the Negotiable Instrument Act. The jurisdiction of learned Chief

Judicial Magistrate, Kargil has been challenged by the petitioner on the

ground that as the transaction took place between the parties within the

jurisdiction of District Srinagar as such no proceedings could have been

initiated before the Chief Judicial Magistrate, Kargil.

5. Learned counsel for the petitioner submits that the petitioner is willing

to make payment to respondent provided the respondent cancels the

said agreement. He further submits that the cheques were not issued in

respect of any discharge of legal debt or liability as such the petitioner

could not have initiated proceedings under Section 138 of the

Negotiable Instrument Act.

6. Per contra, learned counsel for the respondent submits that the

petitioner has raised disputed question of facts which cannot be

adjudicated while deciding the petition under Section 482 of Cr.PC.

7. Heard and perused the record.

8. The record depicts that the parties have entered into agreement in

respect of the land measuring 10 marlas falling under Khasra No.

896/21 Khatta No. 574 Khewat No. 218 situated at Mozai Khushipora Page |4 CRM (M) No. 493/2022 C/w CRM (M) No. 492/2022

Tehsil central, Shalteng. The agreement further depicts that the

petitioner has received an amount of Rs. 15.00 lacs from the

respondent. It has been specifically pleaded by the respondent in the

complaint that as the petitioner could not perform part of obligation as

stipulated in the agreement to sell and that the respondent demanded

money back from the petitioner, he issued cheques for the payment of

money which the petitioner had received from the respondent by virtue

of agreement to sell.

9. In terms of Section 139 of the Negotiable Instrument Act there is

presumption in favour of existence of legal debt or liability and the

respondent has specifically pleaded in his complaint that cheques were

issued in order to discharged the liability in respect of the payment

received by the petitioner by virtue of agreement to sell when the

petitioner failed to discharge his part of obligation by executing sale

deed in favour of the respondent. The presumption under Section 139

of the Negotiable Instrument Act is rebuttable.

10.Be that as it may, the contention raised by the petitioner that the

cheques were issued as a security but not in discharge of any debt or

liability is a question of fact. The petitioner has raised disputed

question of fact which cannot be adjudicated while deciding the petition

under Section 482 of Cr.PC . Further contention raised by the petitioner

that the court of Chief Judicial Magistrate, Kargil lacks jurisdiction to Page |5 CRM (M) No. 493/2022 C/w CRM (M) No. 492/2022

entertain the complaint is misconceived as the cheques were presented

before the J&K Bank Branch Lal Chowk, Kargil for clearance.

11.In view of the above, the present petition is found to be misconceived

and is accordingly dismissed.

12.CRM (M) No. 492/2022

13.Since this petition is filed on the identical grounds, therefore the

judgment supra shall also cover this petition as well.

(Rajnesh Oswal) Judge SRINAGAR 13.10.2023 "Aasif"