MOHAMMAD ANWAR BHAT Vs. ALI MOHAMMAD KHAN

JUDGEMENT

(1.) The present petition has been filed by the petitioner seeking quashing of complaint, titled, Ali Mohammad Khan vs Mohammad Anwar Bhat pending before the court of Judicial Magistrate 1st Class (JMIC) Qazigund (hereinafter to the referred as the trial court) and the cognizance order dated 27.10.2017. Before appreciating the challenge thrown to the complaint as well as order dated 27.10.2017 (supra), it is necessary to have brief resume of the averments made in the complaint.

(2.) The complaint was filed by the respondent for dishonor of the cheque allegedly issued by the petitioner bearing No. 622933 dated 10.08.2017 for an amount of Rs. 15 lakhs, drawn from the J&K Bank Branch, Qazigund. The said cheque was presented by the respondent before the concerned Bank branch on 30.08.2017 for payment but the same was returned back with the remarks "Funds not sufficient" as is evident from the memo issued by the J&K Bank, which is placed on record by the petitioner as annexure-B. After the dishonor of the cheque, within the statutory period, the legal notice was also got issued by the respondent to the petitioner whereby he was called upon to liquidate the amount of dishonored cheque. The statutory notice was also replied by the petitioner. Thereafter, the respondent filed a complaint for commission of offence under section 138 of the Negotiable Instruments Act, 1881 and the learned trial court vide order dated 27.10.2017 issued the process against the petitioner. The petitioner after causing appearance before the trial court had filed an application for dismissal of the complaint but the contention of the petitioner did not find favour with the learned Magistrate and the said application was dismissed by the learned trial court by holding that the issues raised by the petitioner are matter of trial.

(3.) The petitioner has assailed the order dated 27.10.2017 and also the complaint on the ground that he had lost his cheques on 09.02.2017 including the cheque under reference and regarding that he had also lodged missing report and also submitted an application before the concerned Bank Branch on 10.02.2017 whereby he sought cancellation of the cheques books viz a viz OD-154, CD 1171 and CD 2105. The missing report of said lost cheques was also published in Daily Afaaq Kashmir in its edition dated 10.02.2017. On these grounds only, the petitioner is seeking quashing of the complaint as well as order dated 27.10.2017.