Haji Ghulam Qadir vs Charan Choudhary
2026 Latest Caselaw 718 J&K

Jammu & Kashmir High Court

Haji Ghulam Qadir vs Charan Choudhary on 13 February, 2026

                                           Sr. No. 12
      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

CRM(M) No. 1052/2025

Haji Ghulam Qadir                                .... Petitioner/Appellant(s)

                         Through: - Mr. Farhan Mirza, Advocate

                  V/s

Charan Choudhary                                          .... Respondent(s)

                         Through: - Mr. Vikram Sharma, Sr. Advocate with
                                    Mr. Zaheer Abhas Khan, Advocate

CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE

                                  ORDER

13.02.2026

1. Heard learned counsel for the parties and perused the record of the

Courts below.

2. The respondent-complainant instituted a complaint under Section 138

of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI

Act") before the Court of Chief Judicial Magistrate, Jammu, alleging that the

petitioner had approached him for financial assistance in connection with a

"Handling Contract" allotted at PEG, Birpur on 10.05.2018. It was pleaded

that a sum of ₹18,86,000/- was advanced towards 50% of the bank guarantee

and other incidental expenses, with the assurance that the same would be

repaid through cheque.

3. In discharge of the aforesaid liability, the petitioner allegedly issued

Cheque No. 046630 dated 26.10.2022 for ₹16,36,000/- drawn on J&K Bank,

Shalamar Road, Jammu. The cheque, upon presentation, was dishonoured

with the endorsement "Account Blocked". A statutory demand notice was

served, however, despite lapse of the prescribed period, payment was not

made. Consequently, the complaint under Section 138 NI Act was filed.

4. The Trial Court, after recording the statement of the complainant on

affidavit and perusing the documents annexed with the complaint, took

cognizance of the offence in terms of order dated 19.12.2022 and directed

issuance of process against the petitioner. The petitioner assailed the said

order before the Sessions Court by way of Criminal Revision No. Cr.

Rev/1331/2024. The revisional court dismissed the revision vide order dated

03.10.2025 on the ground that the revision petition was barred by limitation

and that the petitioner had been appearing before the Trial Court without

objection for a considerable period.

5. The principal contention urged on behalf of the petitioner before this

Court is that the Trial Court failed to comply with the mandate of Section

202 Cr.P.C. as the petitioner was residing beyond the territorial jurisdiction

of the Magistrate, and that the order taking cognizance reflects non-

application of mind. It was further contended that the revisional court erred

in dismissing the revision on the ground of limitation despite explanation of

delay.

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

statutory requirements under Sections 138 and 142 of the NI Act were duly

complied with, that the Magistrate recorded the sworn statement of the

complainant and examined the material placed on record before issuing

process, and that the petitioner's challenge is a belated attempt to stall trial

proceedings.

7. Having considered the rival submissions and examined the record, this

Court finds that the complaint discloses all essential ingredients of the

offence under Section 138 of the NI Act. The issuance of cheque in

discharge of a legally enforceable debt, its presentation within validity,

dishonour, issuance of statutory notice, and failure to make payment within

the stipulated period stand prima facie established from the averments in the

complaint and supporting documents.

8. In terms of Section 139 of the NI Act, there arises a statutory

presumption that the cheque was issued for discharge of a legally

enforceable debt or liability. The scope and ambit of such presumption have

been elaborately considered by the Hon'ble Supreme Court in 2018 (8) SCC

165, wherein it was held that the presumption under Section 139 of the Act,

includes the existence of a legally enforceable debt and the burden lies upon

the accused to rebut the same by raising a probable defence. Mere denial of

liability does not suffice. In the present case, the petitioner has not placed

any material on record at this stage to rebut the statutory presumption. The

challenge is essentially directed against the order of cognizance.

9. As regards the contention based on Section 202 of the Code of

Criminal Procedure, it is evident from the record that Ld. Magistrate

examined the complaint, perused the documents placed on record, and

recorded the sworn statement of the complainant by way of affidavit prior to

issuance of process. The Hon'ble Supreme Court in Expeditious Trial of

Cases under Section 138 of the Negotiable Instruments Act, 1881, In Re,

(2021) 16 SCC 116, considered the scope and applicability of Section 202

Cr.P.C. in proceedings under Section 138 of the Negotiable Instruments Act.

The Court held that where the accused resides beyond the territorial

jurisdiction of the Magistrate, the inquiry contemplated under Section 202

Cr.P.C. before issuance of summons cannot be dispensed with. However, the

Apex Court further clarified that upon reading Section 145 of the Negotiable

Instruments Act conjointly with Section 202 Cr.P.C., the requirement of

examining witnesses on oath stands satisfied if the complainant's evidence is

tendered by way of affidavit. It was held that where the Magistrate conducts

the inquiry himself, it is not mandatory to examine witnesses orally in every

case, and in appropriate cases, perusal of documents may suffice for forming

satisfaction regarding sufficient grounds to proceed.

10. It is well settled that proceedings under Section 138 of the Negotiable

Instruments Act are governed by the special procedure prescribed under the

Act itself. Being a special statute, the Negotiable Instruments Act prevails

over the general provisions of the Code of Criminal Procedure to the extent

of inconsistency. Wherever the Act prescribes a specific mode, such as

permitting evidence by affidavit under Section 145, the same governs the

field. In the facts and circumstances of the present case, the learned

Magistrate has complied with the statutory mandate, and the order taking

cognizance does not suffer from any procedural irregularity, illegality, or

non-application of mind.

11. The revisional court dismissed the revision petition on the ground of

limitation, noting that the petitioner had been regularly appearing before the

Trial Court and did not challenge the cognizance order within the prescribed

time. Even assuming that the revisional court erred in dismissing the

revision petition of the petitioner but even then, once the order of cognizance

is found to be legally sustainable, no interference would be warranted in

exercise of supervisory or inherent jurisdiction.

12. The inherent jurisdiction under Section 528 of the Bharatiya Nagarik

Suraksha Sanhita (BNSS) is to be exercised sparingly and only where there

is manifest illegality or abuse of process. No such circumstance is made out

in the present case. The complaint discloses a prima facie offence and the

petitioner shall have full opportunity during trial to rebut the presumption

under Section 139 of the NI Act by leading appropriate evidence.

13. Consequently, this Court finds no merit in the petition. The order

dated 19.12.2022 passed by the learned Trial Court taking cognizance and

the order dated 03.10.2025 passed by the learned Sessions Judge, Jammu

dismissing the revision petition do not warrant interference.

14. The petition is, accordingly, dismissed. The parties shall appear

before the Trial Court on 10.03.2026 for further proceedings in accordance

with law. Interim directions, if any, shall stand vacated. Order accordingly.

(SANJAY PARIHAR) Judge JAMMU RAM MURTI 13.02.2026