FAYAZ AHMAD RATHER Vs. TARIQ AHMAD WANI

JUDGEMENT

(1.) The petitioner has challenged the complaint filed by the respondent against him alleging commission of offence under Sec. 138 of the Negotiable Instruments Act (hereinafter referred to as the NI Act). Challenge has also been thrown to order dtd. 26/7/2022 passed by learned Special Mobile Magistrate (Sub Judge), Pulwama (hereinafter referred to as "the trial Magistrate"), whereby cognizance of the offence has been taken and the process has been issued against the petitioner.

(2.) It appears that the respondent/complainant filed a complaint before the learned trial Magistrate alleging commission of offence under Sec. 138 of NI Act against the petitioner. It was pleaded in the complaint that the respondent/complainant approached the petitioner for purchase of land located at Looswani and the petitioner agreed to sell the land to the respondent for an amount of Rs.20.00 lacs. It was further pleaded that it was revealed during verification that the land is mortgaged to the bank, as such, the complainant/respondent requested the petitioner/accused to refund the sale consideration of Rs.20.00 lacs which he had already paid to the petitioner. According to the respondent/complainant, for repaying the amount of sale consideration, the petitioner/accused issued four cheques for an amount of Rs.5.00 lacs each dtd. 5/5/2022, 10/5/2022, 15/5/2022 and 20/5/2022 in favour of the respondent/complainant. It was further pleaded that the respondent/complainant deposited these cheques with his banker i.e. J&K Bank Branch office Parigam Pulwama on 21/6/2022, but the same were returned unpaid due to insufficiency of funds. Thereafter the respondent/complainant served a single legal notice dtd. 1/7/2022 upon the petitioner/accused calling upon him to pay the amount in respect of the dishonoured cheques within a period of fifteen days. However, when the petitioner failed to discharge his liability towards the respondent, the impugned complaint came to be filed by him.

(3.) The learned trial Magistrate, after recording preliminary evidence of the respondent/complainant and after going through the documents annexed to the complaint as also the contents of the impugned complaint, framed a prima facie opinion that the offence under Sec. 138 of NI Act is made out against the petitioner/accused and, accordingly, vide order impugned dtd. 26/7/2022, the process was issued against him.