Jammu & Kashmir High Court - Srinagar Bench
Haji Sonaullah Qadri vs Khurshid Ahmad Malla on 31 May, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No.12
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
CRM(M) No.610/2024
HAJI SONAULLAH QADRI ...PETITIONER(S)
Through: - Mr. Zahoor Ahmad Shah, Advocate.
Vs.
KHURSHID AHMAD MALLA ...RESPONDENT(S)
Through: - Mr. Hamza Prince, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER(0RAL)
31.05.2025
1) The petitioner has challenged the complaint filed by
the respondent against him under Section 138 of Negotiable
Instruments Act as also order dated 04.04.2024 passed by
the learned Judicial Magistrate 1st Class (City Munsiff),
Srinagar (hereinafter referred to as "the trial Magistrate"),
whereby process has been issued against him.
2) It appears that the respondent has filed a complaint
under Section 138 of Negotiable Instruments Act against
the petitioner before the learned trial Magistrate, alleging
therein that the petitioner had offered to sell a plot of land
measuring 01 kanal situated at Raipura Palhalan Pattan
and the total consideration was settled at Rs.16.00 lacs, out
of which respondent paid an amount of Rs.9.00 lacs to the
petitioner.
3) It was pleaded that the petitioner avoided to execute
the sale deed in favour of the respondent on one pretext or
the other and then promised that he would return the
amount of Rs.9.00 lacs to him within one month.
Ultimately, on 25.12.2023, the petitioner issued a cheque
for an amount of Rs.9.00 lacs in favour of the petitioner.
However, the said cheque, when presented for encashment,
was returned unpaid for insufficiency of funds. The
respondent is stated top have served a notice of demand
upon the petitioner but despite receipt of said notice of
demand, the petitioner failed to liquidate the amount of
cheque. Accordingly, the impugned complaint came to be
filed before the learned trial Magistrate, in which the
learned the trial Magistrate, after taking cognizance of the
offences, issued process against the petitioner in terms of
impugned order dated 04.04.2024.
4) The petitioner has challenged the impugned complaint
and the impugned order on the grounds that the
respondent has not furnished the particulars of the loan
which he is alleged to have obtained from the bank for
arranging an amount of Rs.9.00 lacs. Thus, according to
the petitioner, the assertions made by the respondent are
not substantiated. It has been further contended that the
respondent had removed the cheque unauthorizedly during
his employment with the petitioner as a domestic help and
has now misused the same. It has been contended that the
petitioner has not received any amount from the
respondent and there exists no debt or liability upon the
petitioner towards the respondent. It has been further
contended that the allegations made in the impugned
complaint do not constitute any offence against the
petitioner.
5) I have heard learned counsel for the parties and
6) As already narrated, the contention of the petitioner is
that the respondent/complainant has not substantiated
the contention that he had obtained loan of Rs.9.00 lacs
from the bank for paying the amount to the petitioner. It
has been contended that the respondent had no means to
pay such a huge amount to the petitioner.
7) The question whether the respondent had means to
pay an amount of Rs.9.00 lacs to the petitioner and how he
had managed to get this much of amount for its payment to
the petitioner, are the matters which cannot be determined
by this Court in these proceedings. The petitioner has not
disputed the issuance of the cheque by him and he has not
disputed its dishonour or the receipt of demand notice.
Once a cheque is issued by an accused in favour of the
complainant, a presumption in terms of Section 139 of the
Negotiable Instruments Act arises that the cheque has been
issued in discharge of a legally enforceable debt. The said
presumption is, however, rebuttable in nature and drawer
of a cheque can prove, by leading evidence, that the cheque
was not issued in discharge of a legally enforceable debt.
The same can be done by the petitioner in the present case
only during the trial of the case.
8) This Court cannot go into the question as to whether
the respondent had means to pay an amount of Rs.9.00 lacs
to the petitioner nor can it go into the veracity of the defence
of the petitioner that the respondent had removed the
cheque in question unauthorizedly. These are matters
which can be urged by the petitioner before the learned trial
Magistrate during the trial of the case by leading evidence
in support of the said assertions.
9) Learned counsel for the petitioner has, while relying
upon the judgment of the Supreme Court in the case of
Indus Airways Private Limited vs. Magnum Aviation
Private Limited and another, (2014) 12 SCC 539,
contended that the cheque in question was not issued by
the petitioner to discharge any existing liability. In the
aforesaid judgment it has been held that if a cheque is
issued as advance payment for purchase of goods and for
any reason the purchase order is not carried to its logical
conclusion, the cheque cannot be said to have been drawn
for an existing debt or liability.
10) The ratio laid down by the Supreme Court in the
aforesaid case is not applicable to the facts of the present
case as it is not the case of the petitioner that he had issued
the cheque as an advance payment for goods or services to
be supplied/rendered by the respondent but it is a case
where the petitioner has taken an entirely different stand
by contending that the cheque was unauthorizedly removed
by the respondent and that he had no means to pay an
amount of Rs.9.00 lacs to the petitioner.
11) For the foregoing reasons, I do not find any merit in
the petition. The same is dismissed accordingly. Interim
order dated 14.10.2024 shall stand vacated.
(Sanjay Dhar)
Judge
Srinagar,
31.05.2025
"Bhat Altaf"
Whether the order is reportable: YES/NO
