The proceedings in any given case are abuse of process of law or not depends upon the facts and circumstances of each case: The High Court of Jammu & Kashmir and Ladakh
The court can definitely interfere and quash the proceedings taken up in a particular case if it is satisfied that the same is totally unjust and will be an abuse of the process of law if the proceedings are allowed to continue. There is no dispute with the proposition of law that the Court in the exercise of its inherent powers will not lightly interfere where the Court may have to analyze the factual aspects of the case in detail and is required to deal with the defence that may or can be taken otherwise by the party in the proceedings. In the Hon’ble High Court of Jammu &amp; Kashmir and Ladakh led through the single bench by Justice Puneet Gupta in the matters of K.N Singh v. Manjeet Singh [CRMC/210/2014]. The facts of the case are that the petitioner claims to be the proprietor of M/s New Jhelum Construction Company and is engaged in the construction activities. The precise cause of the petitioner is that a cheque bearing No.093015 dated 12.04.2013 for an amount of Rs.7,40,000/- drawn on Jammu and Kashmir Bank Ltd., Town Hall Jammu, from Account No.1279 maintained in the name of the firm of the petitioner was issued to the respondent. The further case of the petitioner is that later on the request of the respondent two cheques of Rs.3,70,000 each were issued to the respondent in lieu of earlier cheque issued for Rs.7,40,000/-. These two cheques were drawn on the account maintained by the petitioner in the J&amp;K Grameen Bank Samba. Both the aforesaid cheques were drawn by the respondent and the amount was transferred in the account of the respondent on 11.05.2013. The cheque earlier issued for Rs.7,40,000/- was returned by the respondent, but later on the said cheque was stolen by the respondent from the office of the petitioner after he collected the amount of two cheques and withdrew the same on 11.05.2013. Mr Rahul Pant, appearing on behalf of the petitioner, has submitted that there was no liability incurred by the petitioner towards the respondent which could result in the issuance of the Also, it was submitted from the petitioner’s side that there was no liability incurred by the petitioner towards the respondent which could result in the issuance of the two cheques in question which were encashed and utilized by the respondent. The two cheques were in lieu of the earlier cheque issued of the same amount of Rs.7,40,000/- and nothing more. Further reiterating the averments contained in the petition through argument it is submitted that it cannot be mere coincidence that the two cheques issued by the petitioner will be of the same amount regarding which the earlier cheque issued to discharge the liabilities incurred on behalf of the petitioner in the contract allotted to the petitioner company. The respondent had argued that the present petition is not maintainable as the grounds pleaded in the same do not make out a prima facie case for abashment of the complaint. It is submitted that the arguments raised on behalf of the petitioner are in factual context and cannot be determined in the present petition. The presumption in law is that if the cheque is issued by the party the same is presumed to be issued in the discharge of some liability and the author of the cheque is required to fulfil his obligation and see that the cheque issued gets enchased in favour of the party in whose favour the cheque is issued. The High Court of Jammu and Kashmir concluded “In the facts and circumstances of the case, this Court does not find any merit in the petition. The petition is dismissed. The petitioner is at liberty to take all the pleas/defence before the trial court that may be available to him under law.”
K. N. Singh Manjeet Singh Supplementary List 2 Sr. No. 94 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CRMC No.210 2014 IA No.239 2014 Pronounced on: 16.11.2021 Through: Mr. Rahul Pant Sr. Advocate …. Petitioner(s) with Mr. Anirudh Sharma Advocate. Through: Mr. V. Bhushan Gupta Advocate. CORAM : HON’BLE MR. JUSTICE PUNEET GUPTA JUDGE The petitioner seeks quashment of the complaint filed under Section 138 of the Negotiable Instrument Act and 420 RPC filed against the petitioner herein and also the order dated 04.09.2013 passed by the learned JMIC Sub Judge) Kathua whereby the learned Court has taken cognizance of the complaint and issued the process. The petitioner claims to be the proprietor of M s New Jhelum Construction Company and is engaged in the construction activities. The petitioner states that the respondent is related to the petitioner and decided to engage him for the supervision of one contract awarded to the petitioner under PMGSY for construction of a road at Kathua. The precise case of the petitioner is that a cheque bearing No.093015 dated 2 CRMC No. 210 2014 12.04.2013 for an amount of Rs.7 40 000 drawn on Jammu and Kashmir Bank Ltd. Town Hall Jammu from Account No.1279 maintained in the name of the firm of the petitioner was issued to the respondent. The further case of the petitioner is that later on the request of the respondent two cheques of Rs.3 70 000 each were issued to the respondent in lieu of earlier cheaque issued for Rs.7 40 000 . These two cheques were drawn on the account maintained by the petitioner in the J&K Grameen Bank Samba. Both the aforesaid cheques were drawn by the respondent and the amount was transferred in the account of the respondent on 11.05.2013. The cheque earlier issued for Rs.7 40 000 was returned by the respondent but later on the said cheque was stolen by the respondent from the office of the petitioner after he collected the amount of two cheques and withdrew the same on 11.05.2013. The FIR also came to be lodged by the petitioner with regard to the theft committed by the respondent herein with Police Station Domana. It is also submitted in the petition that the respondent used to make payment of the expenditure incurred after receiving the payment from the petitioner with regard to the works mentioned above as respondent was supervising the said work. The cheques issued to the respondent were in fact for clearing the liability incurred for and on behalf of the petitioner in the work allotted to the petitioner company of which the mention is made above. 3. Mr. Rahul Pant learned Sr. Advocate appearing on behalf of the petitioner has submitted that there was no liability incurred by the petitioner towards the respondent which could result into issuance of the 3 CRMC No. 210 2014 two cheques in question which were encashed and utilized by the respondent. The two cheques were in lieu of the earlier cheque issued of the same amount of Rs.7 40 000 and nothing more. Further reiterating the averments contained in the petition through argument it is submitted that it cannot be mere coincidence that the two cheques issued by the petitioner will be of the same amount regarding which the earlier cheque issued to discharge the liabilities incurred on behalf of the petitioner in the contract allotted to the petitioner company. It is also argued that the petitioner has also filed an FIR No.497 2013 registered with Police Station Domana with regard to theft committed by the respondent of the cheque amounting to Rs.7 40 000 . The complaint filed by the respondent is abuse of process of law and is required to be quashed on that score. 4. Mr. V. Bhushan Gupta learned Advocate appearing on behalf of respondent has argued that the present petition is not maintainable as the grounds pleaded in the same do not make out a prima facie case for quashment of the complaint. It is submitted that the arguments raised on behalf of the petitioner are in factual context and cannot be determined in the present petition. The presumption in law is that if the cheque is issued by the party the same is presumed to be issued in the discharge of some liability and the author of the cheque is required to fulfill his obligation and see that the cheque issued gets enchased in favour of the party in whose favour the cheque is issued. The author of the cheque may rebut the presumption by cogent evidence during the trial. No case is made out by the petitioner in the present petition to quash the complaint. 4 CRMC No. 210 2014 This Court can definitely interfere and quash the proceedings taken up in a particular case if it is satisfied that the same are totally unjust and will be abuse of process of law if the proceedings are allowed to continue. There is no dispute with the proposition of law that the Court in exercise of its inherent powers will not lightly interfere where the Court may have to analyze the factual aspects of the case in detail and is required to deal with the defense that may or can be taken otherwise by the party in the proceedings. The proceedings in any given case are abuse of process of law or not depends upon the facts and circumstances of each case. In the case in hand the precise submission made on behalf of the petitioner is that the cheque amounting Rs.7 40 000 subject matter of the complaint was though issued to the respondent initially yet on the asking of the respondent in lieu of the said cheque two more cheques of Rs.3 70 000 each were issued to the respondent and further the cheque Rs.7 40 000 though returned by the respondent to the petitioner was again stolen by him after the amounts of two cheques were withdrawn by the respondent. The Court is of the considered view that the transaction as presented by the petitioner in the present has infact happened or meant to take place in that manner cannot be determined or commented upon by this Court in the present proceedings. The issues raised in the petition are factual in nature and cannot be gone into by this Court. The total amount of two cheques is equivalent to the single cheque which was subsequently stolen cannot be mere coincidence in the facts of the case is also pleaded 5 CRMC No. 210 2014 by the petitioner herein but this aspect cannot be speculated or presumed in the present petition so as to provide relief to the petitioner. It is also pleaded that the nature of liability is not mentioned in the complaint qua the cheque and therefore commission of offence under Section 138 of the Negotiable Instrument Act is not made out. The Court is not impressed with this argument of learned Sr. Advocate for the petitioner as the combined reading of para 1 & 2 of the complaint mention that the respondent company used to issue different cheques at different times in favour of the complainant in order to discharge remaining past legal liability of Rs.17 lacs and the cheque of Rs.7 40 000 was also issued in the aforesaid process. The exact nature of liability can be brought on record by the complainant during the trial. It cannot be denied that there is a presumption in favour of the holder of the cheque that the cheque is issued in the discharge of some liability. Of course the presumption can be rebutted by the author of the cheque. The petitioner herein can raise all the pleas which he has taken in the present petition before the trial but cannot agitate the same before this court in the present petition. Lastly it is also contended on behalf of the petitioner herein that the order dated 04.09.2013 whereby the learned Magistrate has taken cognizance of the complaint is passed in a mechanical manner and without applying its mind. The Court is not impressed even with this argument after going through the order passed by the trial Court. The passing of detailed order 6 CRMC No. 210 2014 by the magistrate is not sine qua non while issuing process against the respondent in the complaint. In the facts and circumstances of the case this Court does not find any merit in the petition. The petition is dismissed. The petitioner is at liberty to take all the pleas defence before the trial court that may be available to 10. Learned counsels for the parties to appear before the trial court on him under law. Puneet Gupta ) Judge Whether the order is speaking Whether the order is reportable PAWAN CHOPRA2021.11.17 10:39I attest to the accuracy andintegrity of this document 