D. MEADOWS LADAKH Vs. MOHAMMAD ALI

JUDGEMENT

(1.) The petitioner, an accused in the complaint filed under Sec. 138 of Negotiable Instruments Act, 1981 ['N.I. Act'] by the respondent, is before this Court seeking exercise of inherent power vested in this Court by Sec. 482 Cr.P.C to quash the complaint and the consequent proceedings in case titled "Mohammad Ali vs. M/S D Meadows, Ladakh pending trial before the Court of learned Chief Judicial Magistrate, Kargil, Ladakh (for short 'the trial Court').

(2.) The aforesaid complaint as well as the proceedings taken therein are challenged primarily on the ground that the cheque, alleged to have been dishonored, was not issued by the petitioner in favour of the respondent for any legally enforceable debt and that the complaint has been filed just to wreck vengeance and cause harassment to the petitioner and his family members. It is averred that the dispute between the petitioner and the respondent, if any, is purely a dispute of civil nature and, therefore, the respondent can not be permitted to set the criminal law in motion to settle the civil dispute by creating fear of prosecution. Reference is also made to a civil suit for permanent prohibitory injunction filed by the petitioner against the respondent which is subjudice in the Court of Sub-Judge, Kargil, Ladakh. It is lastly contended that the complaint filed by the respondent purportedly under Sec. 138 read with 142 of N.I. Act is only a tool of harassment and, therefore, allowing such complaint to proceed would be gross abuse of process of law.

(3.) The petition is resisted by the respondent who has entered appearance and contested the petition through his counsel Mr. M.A.Qayoom, Advocate. The star point raised by Mr. Qayoom to resist this petition is that when the cheque issued by the petitioner to the respondent is not denied, there is presumption under Sec. 139 of N.I. Act that the same has been issued for discharging legally enforceable debt. He submits that the pleas raised by the petitioner in this petition may, at best, amount to defence of the petitioner, to be led by him during the trial. He argues that the trial Court, at the time of taking cognizance, was only to ensure that the ingredients of Sec. 138 of N.I. Act were pleaded and demonstrated and once, it was so found, the Magistrate had no option, but to take the cognizance. He further submits that the petitioner has not come to this Court with clean hands, in that, the petitioner in his statement recorded before the trial Court under Sec. 251 Cr.P.C, has not set up the defence which he has pleaded in this petition, rather he has completely denied the contents of the complaint being false and misleading allegations. On these short submissions, learned counsel for the respondent seeks dismissal of this petition.