Jammu & Kashmir High Court - Srinagar Bench
Sikander Khursheed Dar vs Mohammad Hidayat Ullah on 8 May, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU &KASHMIR AND LADAKHAT
SRINAGAR
Reserved on: 18.03.2025
Pronounced on: 08.05.2025
CRM(M) No.57/2023
SIKANDER KHURSHEED DAR ...PETITIONER (S)
Through: Ms. Ahra Syed, Advocate.
Vs.
MOHAMMAD HIDAYAT ULLAH ...RESPONDENT(S)
Through: Mr. Syed Faisal Qadiri, Sr. Advocate, with
Mr. Sikandar Hayat Khan, Advocate.
CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.
JUDGMENT
1. The petitioner has sought quashing of complaint
under Section 138 of the Negotiable Instruments Act ["for
short 'N.I Act"] filed by the respondent and pending before
the Court of Judge Small Causes, Srinagar (hereinafter
referred to as "trial court"). Challenge has also been
thrown to the order dated 19.04.2022, whereby the
learned trial court has issued the process against the
petitioner/accused. The petitioner has also challenged the
order 28.09.2022, whereby the learned trial court has
dismissed the application filed by the petitioner for
dropping of proceedings and has allowed the application
filed by the respondent for amendment of the complaint.
The petitioner has also impugned two orders each dated
14.09.2022 and 15.12.2022 passed by the Court of 4th
Additional Sessions Judge, Srinagar, whereby the revision
filed by the petitioner against the orders dated 19.04.2022
and 28.09.2022 passed by the learned trial court, has
been dismissed.
2. The respondent filed a complaint against the
petitioner, alleging therein that the petitioner who is
running the business of construction and building under
the banner of "M/S Al Mahmood Builders Ltd." had agreed
that he would provide to the petitioner 2 BHK flat on Noth
East corner side at Satbari South, Delhi Tehsil Mehrauli
District Chattarpur, New Delhi, in respect of which an
agreement came to be executed between the parties. The
respondent paid the consideration amount, but when the
petitioner/accused failed to provide the 2 BHK flat, the
respondent/complainant approached him through
respectable persons and also requested him through
telephonic mode, whereafter he issued eight cheques for
an amount of Rs.32.00 lacs vide Cheque Nos. 66712,
466713, 466714, 466715, 466716, 466717, 466718 and
466719 (each cheque amounting to Rs.4.00 lacs). When
the above-mentioned cheques were presented before the
J&K Bank Branch Byepass Nowgam, Srinagar, for
encashment, the same were dis-honoured for insufficiency
of funds. It is further averred in the complaint that a
notice of demand was sent through registered post to the
petitioner, which was received by him but despite that, he
failed to pay the cheque(s) amount within the stipulated
period, which compelled the respondent to file the
3. It appears that the learned trial court, after recording
the preliminary statement of the respondent/complainant,
issued the process against the petitioner in terms of order
dated 19.04.2022. It is further borne out from the record
that the petitioner moved an application for dropping of
proceedings before the learned trial court on the ground
that the cheques have been issued by "Sikander Home
Building Cooperative Ltd." but the company has not been
impleaded as accused. However, the application was
dismissed in terms of order dated 28.09.2022. By virtue of
same order, the learned trial court allowed the application
of the respondent seeking amendment of the complaint
and M/S Al-Mehmood Builders Ltd. and M/S Sikander
House Building Corporation Ltd. were arrayed as accused.
A revision petition came to be preferred by the petitioner
before the Court of learned 4th Additional Sessions Judge,
Srinagar, against the orders, each dated 14.09.2022 and
dated 28.09.2022 but the same was also dismissed in
terms of order dated 15.12.2022.
4. The petitioner has challenged the complaint and the
impugned orders, inter alia, on the following grounds:
(I) That N.I Act in itself is a Code, and Section 138 of
the said Act provides procedure for launching
prosecution against an accused but the said
procedure has not been followed in the instant
case.
(II) That in terms of the provisions of Section 141 of
N.I. Act, commission of offence by the company is
a condition precedent to attract the vicarious
liability of others. In the instant case, it is the
company which is drawer of the cheque, and the
complainant has not only failed to array the
company as accused but has also not complied
with the statutory requirements of giving notice to
the drawer. The complainant to overcome this
serious infirmity/defect sought amendment
seeking substitution of the company as accused in
the complaint but the trial court without following
the mandate of law allowed the said application
which is an abuse of process of law.
(III) That there are no specific averments in the
complaint regarding role of the accused in the
company which has issued the cheques in
question but instead name of a different company
owned by the accused is mentioned which is
against the settled principles of law.
(IV) That the trial court without scrutinizing the
contents of the complaint and the documents
placed on record by the complainant took
cognizance of the matter in a casual manner
without application of judicial mind and issued
process against the petitioner.
(V) That the amendment in a criminal complaint is
alien to law as there are no provisions in the Code
of Criminal Procedure which deals with
amendment of complaint or substitution of
accused.
(VI) That the impugned orders do not spell out any
valid reason as to why application for dropping of
proceedings was not taken up on merits. The trial
court, by allowing the amendment application
carved out a case in favour of the complainant as
the said amendment changed the nature of whole
complaint and rendered the application for
dropping of proceedings filed by the petitioner and
all the defenses of the petitioner as infructuous.
(VII) That the revisional court without considering the
written arguments of the petitioner dismissed the
revision petition and upheld the order passed by
the trial court and overlooked the law laid down by
the Supreme Court in Aneeta Hada vs. Godfather
Travels & Tours (P) Ltd. (2012) 5 SCC 661 and S.
M. S. Pharmaceuticals Ltd. vs. Neeta Bhalla,
(2005) 8 SCC 89.
5. Learned counsel for the petitioner has argued that the learned
trial court could not have allowed the amendment of the
complaint by permitting the respondent to array the companies,
namely, M/S Al-Mehmood Builders Ltd. and M/S Sikander
House Building Corporation Ltd., as accused and that the learned
trial court has not rightly decided the application for dropping of
the proceedings.
6. Per contra, Mr. Syed Faisal Qadiri, learned senior counsel for
the respondent, has argued that the matter is pending before the
learned trial court for evidence of the petitioner/accused and
even the petitioner/accused has appeared as witness on his own
behalf, therefore, the proceedings before the trial court cannot be
allowed to be scuttled by the petitioner at the fag-end of the trial.
7. Heard and perused the record.
8. The record depicts that during the pendency of the complaint, the
petitioner filed an application for dropping of the proceedings
whereas the respondent moved an application seeking
amendment of the complaint for arraying the companies of the
accused, namely, M/S Al-Mehmood Builders Ltd. and M/S
Sikander House Building Corporation Ltd, as accused in the said
complaint. The respondent also annexed an affidavit with his
application seeking amendment of complaint, sworn/executed by
the petitioner/accused, bearing the seals of M/S Al-Mehmood
Corporates Ltd. and M/S Sikander House Building Cooperative
Ltd.
9. The petitioner in his application before the learned trial court has
stated that the cheques were issued by M/S Sikander House
Building Cooperative Ltd. and the company was not arrayed as
accused. The petitioner in this petition has shown himself to be a
private limited company but the petition has not been filed by the
company but by the accused in his personal capacity. The
company and cooperative society have not chosen to assail the
order dated 28.09.2022. The seal affixed on the cheques bears
the impression of "Secretary, Sikander House Building
Cooperative Ltd" whereas in the present petition, the petitioner
has shown himself to be the private limited company. In this
context, it would be apt to extract the relevant averment made in
para (2) of the petition, which is as under:
"That the petitioner is a private limited company and
the respondent had some transactions with the
petitioners company......"
10. The learned trial court has arrayed both M/S Al-Mehmood
Builders Ltd. and M/S Sikander House Building Corporation
Ltd as accused in the complaint, and it appears that the wrong
names of companies were mentioned not only in the application
but also in the order impugned. It appears that the cheques in
question have been issued by the Secretary, M/S Sikandar
House Building Cooperative Ltd. The respondent has very
casually filed the complaint before the learned trial court and
the petitioner is also competing with him in negligence, as he
has shown himself to be the private limited company in this
petition. The petitioner, while demonstrating his status, has not
approached this Court with clean hands.
11. The petitioner has jumbled the facts and the inherent powers
for quashing criminal proceedings cannot be exercised when the
facts are disputed. Moreso, much water has flown since the
process was issued against the petitioner and amendment was
allowed by the learned trial court, as after the amendment was
allowed, the complainant/respondent concluded his evidence
and even the petitioner/accused appeared as witness in his
defence. Vide order dated 25.05.2024, the evidence of the
petitioner/accused stands closed. Therefore, in view of the fact
that the matter is pending before the learned trial court for final
arguments, this Court does not deem it proper to show
indulgence at this stage, particularly when the petitioner has not
approached this Court with clean hands and undisputed facts. It
is worthwhile to observe here that neither the Company nor the
Cooperative Society has chosen to assail the order dated
28.09.2022.
12. In view of the above, this Court does not find any reason to
show indulgence. The petition is dismissed. The trial court shall
proceed in the matter to decide the complaint in accordance
with law. Needless, to say that this Court has not expressed any
opinion in respect of the merits of the claims of the parties.
13. A copy of this order be sent to the learned trial court for
information and compliance.
(RAJNESH OSWAL)
JUDGE
Srinagar
08.05.2025
"Bhat Altaf-Secy"
Whether the order is reportable: No
