Jammu- The High Court of J&K and Ladakh on Tuesday dismissed a petition seeking quashing of criminal proceedings in a cheque dishonour case, holding that disputed questions such as loss of a cheque, prior stop-payment instructions, and the absence of a legally enforceable debt are matters of defence that can only be adjudicated during trial.
A Bench of Justice Wasim Sadiq Nargal, while dismissing the petition filed by one S Gupta, upheld the order of the Sub Judge (Special Mobile Magistrate), Rajouri, issuing process in a complaint under Sections 138 and 142 of the Negotiable Instruments Act. The Court observed that the complaint disclosed a prima facie case and found no jurisdictional error warranting interference under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
Gupta had argued that the cheque in question belonged to a cheque book reported missing in 2022 and that payment had already been stopped through instructions issued to the bank. He contended that the cheque had been misused and that no legally enforceable liability existed. The respondent (complainant before trial court), however, maintained that the cheque had been issued towards repayment of financial assistance amounting to Rs 65.68 lakh and that its dishonour for “Payment Stopped by Drawer” attracted the provisions of the Negotiable Instruments Act.
Rejecting the plea for quashing, the Court held that once the execution of the cheque is not disputed, the statutory presumption under Section 139 of the Negotiable Instruments Act operates in favour of the holder. The Court observed that whether the cheque was lost, misused, or issued in discharge of a legally enforceable debt are factual issues requiring evidence and cannot be examined in proceedings invoking the Court’s inherent jurisdiction.
The Court further noted that accepting Gupta’s contentions at the threshold would amount to conducting a “mini trial,” which is impermissible while exercising inherent powers under Section 528 BNSS. It also relied on an earlier decision involving the same petitioner, where similar pleas had been rejected with liberty to raise them before the trial court.
Accordingly, the Court dismissed the petition, vacated the interim protection granted to Gupta, and directed the trial court to proceed with the complaint expeditiously in accordance with law, while clarifying that all defences raised by Gupta remain open to be considered during the course of the trial.
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