MANZOOR AHMED KHAN Vs. SHRI S.M. KHATOTRA

JUDGEMENT

(1.) This petition preferred under Sec. 561-A Crimial P.C. seeks quashing of order dated 30.10.2013 passed by the Court of learned Judicial Magistrate, 1st Class, Jammu in complaint under Sec. 138 of the Negotiable Instrument Act in case titled 'S.M. Khatotra Vs. Manzoor Ahmed Khan' holding that till the matter is finally set at rest by Honourable High Court about application of Sec. 145 amended of Negotiable Instrument Act to the State of J&K till then it cannot be said that the statement was to be rejected or taken off the record; and order dated 02.06.2014 pursuant to which the Criminal Revision No.67 titled 'Manzoor Ahmed Khan Vs. S.M. Khatotra' came to be dismissed by the learned Principal Sessions Judge, Jammu, being not maintainable on the ground that the order impugned therein was an interlocutory order.

(2.) Learned counsel for the petitioner submitted that the complaint titled 'S. M. Khatotra Vs. Manzoor Ahmed Khan' came to be filed under Sec. 138 of the Negotiable Instrument Act read with Sec. 420 RPC. The said complaint is at present pending disposal before the Court of learned Munsiff, Jammu. It is stated that the cheques, on the basis of which the aforementioned complaint came to be filed by the respondent, were never issued with a view to liquidate any of the pecuniary claims of the respondent. In fact, the cheques came to be issued as a security in the business that the petitioner and the respondent would do in dry fruits etc. That during the course of proceedings in the said complaint, the respondent submitted his deposition on affidavit. It is stated that against the recording of the statement by the respondent before learned trial Court by affidavit, objections came to be filed. An application came to be filed by the petitioner for striking down of the record, the statement furnished by the complainant on affidavit before the learned trial Court on the ground that the provisions pursuant to which the evidence could be adduced by way of affidavit have not been extended to the State of Jammu and Kashmir.

(3.) Learned counsel for the petitioner further submitted that the complainant/respondent appears to have filed a statement on affidavit purportedly under Sec. 145 of the Negotiable Instrument Act. That the bare perusal of the said provisions makes it abundantly clear that the evidence of the complainant can be given on affidavit notwithstanding the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), a Code which has no application to the State of Jammu and Kashmir. The said Sec. is an exception and has been carved out in disregard to 1973 (2 of 1974) for the trial of complaints. The said Sec. does not speak of the Code of Criminal Procedure Svt. 1989 (1933 AD) which regulates the trial of complaints within the State of Jammu and Kashmir, therefore, the said Sec. cannot be said to be either applicable or operative regardless of the provisions of the Code of Criminal Procedure Svt. 1989 (1933 AD). Sec. 145, thus, has no applicability and the statement made by the complainant on affidavit before the trial Court cannot be considered in law. The learned trial Court after hearing both the sides, vide order dated 30.10.2013 returned a finding to the effect that till the matter is finally set at rest by Honourable High Court about application of Sec. 145 amended of Negotiable Instrument Act to the State of J&K till then it cannot be said that the statement was to be rejected or taken off the record. That the criminal revision filed against order dated 30.10.2013 came to be dismissed being not maintainable on the ground that the same was against interlocutory order. With afore mentioned submissions, learned counsel prays for allowing the instant petition and quashing of the impugned orders.