ZULFIKAR HUSSAIN DAR Vs. AIJAZ AHMAD DAR

JUDGEMENT

(1.) This quashment petition filed by the petitioner under Section 482 Cr.P.C seeks to set aside and quash the order dated 30.03.2021 passed by the Judicial Magistrate First Class, Budgam ( for short " the trial court? hereafter), in case File No. 20 titled as Aijaz Ahmad Dar v. Zulfikar Ahmad Dar, whereby and where under the trial court has, while taking cognizance of the complaint filed by the respondent Under Section 138 of the Negotiable Instruments Act, (for short " the NI Act? hereafter), has issued the process for appearance of the accused (the petitioner). The impugned order as also the complaint filed by the respondent is challenged on several grounds, which I shall advert to after noticing material facts leading to filing of this petition.

(2.) The respondent instituted a complaint under Section 138 of the NI Act against the petitioner in the trial court. It is alleged in the complaint that petitioner and the respondent were having friendly relations and the respondent, from time to time, had lent more than two crores and seventy five thousand to the petitioner through different modes, viz. cheques, transfer and cash etc. The petitioner paid part of the said amount and was reluctant to pay the balance amount due to the respondent. The matter was finally settled in the month of October/November 2019 and, after rendition of accounts, a sum of Rs. 82 lacs was found payable by the petitioner to the respondent as outstanding amount. The petitioner discharged part of his liability by making the payment of Rs. 40 Lacs in cash and issued four cheques for an amount of Rs. 32 lacs. The balance amount of Rs. 10 lacs was promised to be paid by the petitioner within some short time. Before the respondent could present the cheques for encashment to the bank, he was requested by the petitioner not to present cheque bearing No. 119942 dated 10.05.2020 for an amount of Rs. 10 lacs for encashment with a promise that petitioner would make the payment of the entire amount once the lockdown imposed by the Government due to COVID-19 was lifted. The petitioner did not keep his promise and, accordingly, the respondent presented the remaining three cheques for amount of Rs. 22 lacs for encashment in his account maintained in the name of M/S New Lark with J&K Bank Branch, Ompora, Budgam.

(3.) It is worthwhile to notice that on presentation of the complaint the trial Court took cognizance and after recording the preliminary statement of the complainant and his witness, who was present along with the complainant, issued process for appearance of the petitioner. This order of the trial Court dated 17.11.2020 was called in question by the petitioner by way of revision petition filed before the Court of learned Sessions Judge, Budgam. The revision petition was accepted by the learned Sessions Judge and the order impugned in the revision petition dated 17.11.2020 was set aside with a direction to the trial Court to hear the matter afresh in accordance with law for taking cognizance and issuance of process in the matter. This is how the matter came up for consideration before the trial Court once again. The trial Court, after hearing the respondent as well as the petitioner vide impugned order held the complaint maintainable and, accordingly, issued process to the petitioner to appear as accused and contest the complaint. It is this order of the trial Court which is essentially under challenge in this petition.