ABDUL GANI TRAMBOO Vs. ABDUL RASHID MIR

JUDGEMENT

(1.) Complaint titled Abdul Rashid Mir v. Abdul Gani Tramboo bearing file No. 154 under Section 138 of the Negotiable Instrument Act is pending before the court of Chief Judicial Magistrate, Anantnag. The proceedings aresought to be quashed on the ground that the petitioner who has been arrayed as an accused is not drawer of the cheque. In factcheque has been issued by the Farooq Ahmad Tramboo which fact is not denied. Learned counsel for the respondent initially submitted that Farooq Ahmad Tramboo is a son of the petitioner, they have a partnership business and have a joint account therefore petitioner is liable for the act of his son.

(2.) The statement made by the learned counsel for the respondentruns contrary to thelaw. Proceedings under Section 138 of the Act can lie only against the drawer of the cheque when there is nothing on the record to show that the petitioner and his son had partnership business and in the process of partnership business cheque has been issued which otherwise also is not alleged in the complaint anywhere therefore father cannot be arrayed as an accused when he is neither drawer of the cheque.

(3.) It is a fact that the cheque issued by Farooq Ahmad Tramboo has been returned by the Jammu and Kashmir Bank with memo mentioning therein "returned in view of insufficiency of funds". Learned trial court has not considered the provision of the Act nor has considered the allegations contained in the complaint. Continuation of such proceedings will be an abuse of process of the court and will cause miscarriage of justice. At the end of the trial the result is obviously failure of the complaint.