MOHD. SHARIEF MIR Vs. RAMESH KUMAR VASANDANI THANWARDAS

JUDGEMENT

(1.) Petitioner-Mohammad Sharief Mir, figuring as accused in the complaint case No. 40-A dated 21.06.2012 titled "Ramesh Kumar Vasandani Thanwardas v. Mohammad Sharief Mir" for offence under Section 138, Negotiable Instruments Act, 1881 has invoked the jurisdiction of this Court under Section 561-A Cr.P.C. for quashing of proceedings in the afore-titled complaint case pending inquiry before learned Judicial Magistrate, Pulwama. Respondent-Ramesh Kumar Vasandani claiming to be a fruit merchant/commission agent carrying business at New Subzi Mandi Azadpur, Delhi under name and Style of "M/s. Ramesh Kumar Thanwardass" - a registered firm having business establishments also at Apni Mandi Pachhar district Pulwama and fruit Mandi at Pulwama which are run by his attorney holder Gh. Mohammad Dar, filed complaint through his above named attorney holder alleging that in the year 2010, petitioner offered to supply fruits of that year and after settlement of accounts of sale proceeds of the fruits, an amount of Rs. 50.00 lacs (fifty lacs) were found outstanding against the petitioner, who in discharge of his liability to pay the consideration amount issued three cheques in favour of respondent with following particulars;

(2.) The Cheques were issued in the name of the Jammu and Kashmir Bank Limited Branch Drabgam District Pulwama where the petitioner was operating account No. CD-394 favouring the respondent firm for encashment and collection. It was further alleged in the complaint that the aforesaid cheques when presented for encashment bounced on account of insufficiency of funds in the account of petitioner. The Jammu and Kashmir Bank Branch Azadpur, Delhi was alleged to have issued a memorandum dated 19.04.2012 in this regard. Respondent claims to have informed the petitioner about dishonouring of the cheques and demanded liquidation of the amount of cheques. He also claims to have served statutory Demand Notice on the petitioner on 04.05.2012 but despite service of notice, petitioner did not make payment. Thus, respondent was left with no option but to file the complaint.

(3.) Learned Magistrate, after examining the complaint and applying his mind to the material placed on the record of the complaint case, was of the view that there was ground for proceeding against the accused - petitioner herein and accordingly issued process against him. Aggrieved thereof petitioner seeks quashment of proceedings in the complaint case on the ground that due to unfavourable climatic conditions, fruit production was not good. Thus, he could not supply and forward the requisite quantity of fruit to respondent who called him to Delhi, humiliated him and obtained three dateless cheques from him on the promise that when the fruit is forwarded, the cheques would be returned. Petitioner's case is that he sent huge quantity of fruit and asked the respondent to settle the accounts, which annoyed the respondent, who served Demand Notice against petitioner only to exploit him. It is contended on behalf of petitioner that the Trial Court could not have taken cognizance of offence on the basis of statement of attorney holder of respondent, that the trial Court lacked jurisdiction and that the respondent had practiced fraud and deception in obtaining signatures of petitioner on undated cheques.