The High Court of Jammu & Kashmir and Ladakh (Jammu Bench) dismissed the petition seeking quashment of proceedings under Section 138 of the Negotiable Instruments Act, 1881, observing that whether the check was issued by way of security or in discharge of a legally enforceable debt is a matter of evidence that cannot be adjudicated in proceedings under Section 482 Cr.P.C.
The case arose from a petition filed for the quashing of a complaint pending before the Trial Court under Section 138 of the NI Act. The complaint alleged the dishonour of a check for Rs. 35,00,000/- issued by the petitioner. The record indicates that the petitioner had already appeared before the Trial Court, participated in the proceedings, and cross-examined the complainant’s witnesses. It was also noted that upon being put on notice under Section 251 CrPC, the petitioner did not raise any specific plea that the check had been issued merely as security or that the liability had already been discharged.
Rejecting the petitioner’s contention that the check was issued only as a security instrument and that no subsisting liability existed, the bench of Justice Sanjay Parihar observed that proceedings under section 138 of the NI Act are governed by the statutory presumption contained in sections 118 and 139 of the NI Act. The Court held that disputed questions such as the nature of the check and existence of liability fall within the domain of trial and cannot be examined under inherent jurisdiction.
Finding that the complaint disclosed the ingredients constituting an offense under Section 138 of the NI Act and that no abuse of process was made out, the court declined interference and dismissed the petition along with connected applications, directing the trial court to proceed in accordance with law.
Appearance:
Advocate Dinesh Dogra, Advocate Vishal Goel for the Petitioner
Senior Advocate Aseem Sawhney with Advocate Harsh Singh & Advocate Anil Kumar, Advocates S. H. Rather for the Respondent
