PARVAIZ AHMAD BHAT Vs. FIDA MOHAMAMD AYOUB

JUDGEMENT

(1.) Petitioners have challenged the complaint filed by respondent against them for offence under Sec. 138 of Negotiable Instruments Act (hereinafter for short "the NI Act") read with Sec. 420 IPC pending before the Court of Chief Judicial Magistrate, Anantnag. They have also challenged the order dtd. 27/8/2020, whereby the learned Magistrate has, after taking cognizance of the offences, issued process against the petitioners.

(2.) It appears from the record of the case that respondent has filed a complaint against the petitioners alleging that cheques bearing No.612444 dtd. 9/7/2020 for an amount of Rs.15.00 lacs, No.612445 dtd. 9/7/2020 for an amount of Rs.10.00 lacs and No.612446 dtd. 9/7/2020 for an amount of Rs.10.00 lacs drawn on J&K Bank Branch Khanabal in favour of respondent/complainant, when presented to the banker, were returned unpaid with the remarks "drawers signature incomplete". According to respondent/complainant, the petitioners knowing fully-well that the cheques were to be signed by both the petitioners, who happen to be the partners of the firm that has issued the cheques in question, deliberately and intentionally in order to cheat and defraud the respondent, endorsed signature of only one of the partners on the cheques, as a result of which the same were dishonoured by the banker. The respondent/complainant served a legal notice upon the petitioners through registered post and when the petitioners failed to liquidate the cheque amount, the complaint, which is subject matter of this petition, came to be filed before the trial Magistrate. The learned Magistrate, after recording the preliminary evidence, took cognizance of the offences and issued process against the petitioners. The complaint and the order issuing process against the petitioners are under challenge before this Court.

(3.) The primary ground that has been urged by the petitioners is that the complaint and the order of issuing process is not legally tenable as the dishonor of cheque due to mismatch of signatures or incomplete signatures does not constitute an offence under Sec. 138 of the NI Act. Petitioners have relied upon judgment of the Supreme Court in the case of Vinod Tanna. Vs. Zaheer Siddiqui, (2002) 7 SCC 541 to support their contention.