MOHAMMAD SHAFI WANI Vs. NOOR MOHAMMAD KHAN

JUDGEMENT

(1.) Petitioner has challenged the complaint filed by the respondent against him for offence under Sec. 138 of Negotiable Instruments Act (hereinafter for short "the NI Act") pending before the Court of Judicial Magistrate, 1st Class (1st Additional Munsiff), Srinagar. Petitioner has also challenged order dtd. 26/7/2019, whereby the learned Magistrate has, after taking cognizance of the offence, issued process against the petitioner.

(2.) It appears from the record that respondent has filed a complaint against the petitioner alleging that a cheque bearing No.406696 dtd. 1/3/2019 for an amount of Rs.5.00 lacs, issued by petitioner in his favour which was drawn on J&K Bank Branch unit Habbak Crossing, Srinagar, was returned unpaid by the concerned bank with the remarks "funds insufficient and drawer's signature differs". The respondent is stated to have served a legal notice of demand upon the petitioner and when the petitionerfailed to make the payment within the statutory period, 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 offence and issued process against the petitioner in terms of its order dtd. 26/7/2019. The complaint and the order issuing process against the petitioner is under challenge before this Court.

(3.) The petitioner has urged two grounds, one that the complaint and the order of issuing process are not legally tenable as the dishonour of cheque was due to difference in drawer's signatures and, as such, offence under Sec. 138 of NI Act is not made out against the petitioner. The other ground that has been urged by the petitioner is that the cheque in question was given by the petitioner to the respondent as a security pursuant to a memorandum of understanding executed by the parties on 30/11/2017, and not in discharge of any legally outstanding amount or in discharge of any debt.