Mohammad Maqbool Bhat vs Mohammad Shafi Naik on 29 July, 2025

Jammu & Kashmir High Court – Srinagar Bench

Mohammad Maqbool Bhat vs Mohammad Shafi Naik on 29 July, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

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                                              Suppl

    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT SRINAGAR
                                  CRM (M) No. 434/2025
                                    CrlM No. 1049/2025

Mohammad Maqbool Bhat
                                                      ..... Petitioner (s)

                      Through: Mr. Shabir Ahmad Dar, Adv.

                   V/s

Mohammad Shafi Naik
                                             ..... Respondent(s)
                      Through: .
Coram:
          Hon'ble Mr. Justice Sanjay Dhar, Judge
                              ORDER

29.07.2025

1. The petitioner has challenged complaint filed by the respondent

against him alleging commission of offence under Section 138

of Negotiable Instruments Act. Challenge has also been thrown

to the order dated 17.11.2023 passed by the learned Judicial

Magistrate 1st Class (Sub Judge) Chadoora whereby the

respondent has been awarded interim compensation in terms of

Section 143-A of Negotiable Instruments Act to the extent of

20% of the cheque amount and it has been further provided that

in case of default, further amount of Rs. 1,20,000/- shall be

recovered as fine through coercive measures.

2. Learned counsel for the petitioner has submitted that, there was

an underlying transaction with regard to sale of land between
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CrlM No. 1049/2025

the parties and the respondent/complainant has not placed on

record the agreement to sell in this regard. It has been submitted

that if the respondent would have placed on record copy of the

agreement to sell executed between the parties, it would have

come to the fore that there was no legally enforceable debt due

against the petitioner.

3. So far as the aforesaid contention of the learned counsel for the

petitioner is concerned, the same does not have any merit for

the reason that at this stage, defence of the petitioner cannot be

looked into by this Court while exercising powers under Section

528of BNSS by holding a mini trial. Once it has been shown that

the accused has issued the cheque in favour of the complainant

and the said cheque has been dishonoured, the presumption

under Section 139 of NI Act comes into play which can be

rebutted by the accused only during the trial of the case and not

prior to that. The contention of the petitioner, in this regard, is

therefore without any merit and is rejected.

4. However so far as the contention of the petitioner with regard to

the validity of the order dated 17.11.2023 passed by the learned

Magistrate is concerned, there appears to be merit in his

submission that the same is not in accordance with law. It

appears that the said order has been passed by the learned

Magistrate without adhering to the guidelines issued by the
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CrlM No. 1049/2025

Supreme Court in case titled Rakesh Ranjan Shrivastava Vs.

State of Jharkhand and others reported in (2024) 3 SCR 348.

Thus, a prima facie case is made out so far as challenge to order

dated 17.11.2023 is concerned.

5. Accordingly let notice be issued to the respondents to the limited

extent of validity of order dated 17.11.2023.

6. In the meantime, till next date of hearing before the Bench, the

impugned order dated 17.11.2023 shall remain in abeyance.

7. List on 08.09.2025.

(Sanjay Dhar)
Judge
SRINAGAR
29.07.2025
Aasif