Jammu & Kashmir High Court
Bashir Ahmed Tantrey vs Brij Bhushan on 30 January, 2025
S. No. 17
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- CRM(M) No. 70/2025
CrlM No. 124/2025
Bashir Ahmed Tantrey .....Appellant(s)/Petitioner(s)
Through: Mr. Azhar Usman Khan, Advocate
Vs
Brij Bhushan, Managing Director J&K Coop Tourism & ..... Respondent(s)
Housing Corp. Ltd.
Through:
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
ORDER
(30.01.2025)
01. The instant petition has been preferred by the petitioner under Section 528
of the Bhartiya Nagrik Suraksha Sanhita, 2023 (for short ‘BNSS’) seeking
quashment of order dated 20.04.2023 passed by the learned Special Mobile
Magistrate, Passenger Tax and shops Establishment, Jammu against the
petitioner in the complaint under Section 138 of the Negotiable Instrument
Act and also calling in question the proceedings arising out of the said
complaint.
02. It is the specific case of the petitioner that the petitioner has neither issued
any cheque in question nor has any liability and it does not bear the
signature of the petitioner. In addition, the bank account from which the
cheque is drawn does not belong to the petitioner and the complaint filed
by the respondent acknowledges that the cheque was issued by accused
No.1 and not by the petitioner. In addition, the learned counsel further
2 CRM(M) No. 70/2025
submits that no material evidence or documentary proof submitted in the
complaint with a view to establish that the petitioner had any role in issuing
the said cheque and on the other hand all these important facts have been
ignored by the trial Court and the trial Court has proceeded to take
cognizance against the petitioner without conducting any inquiry in terms
of Section 202 Cr.P.C to determine whether any prima facie case is made
out against the petitioner or not.
03. Learned counsel for the petitioner has vehemently argued that the
complaint along with the order of cognizance is vitiated by the non-
application of mind and suffers from gross legal infirmities and is also
violative of Section 461 Cr.P.C which provides certain irregularity render
proceeding void with particular reference to clause-I of the aforesaid
statutory provision, provides that if a Magistrate take cognizance of an
offence under Section 190 Clause-C of sub-Section-1 without following the
prescribed proceedings, the proceedings emanating thereafter are void ab-
nitio. Thus, according to the learned counsel, the Magistrate has failed to
appreciate that the petitioner cannot be held vicariously liable under the
provisions of Section 138 of the N.I.A as he is neither drawer nor signatory
of the cheque in question and on the other hand, the respondent with mala
fide intention has dragged the petitioner into a criminal litigation with a
view to extort money and applying pressure tactics.
04. The learned counsel with a view to buttress his arguments has placed
reliance upon the judgments of the Apex Court in case titled ‘Alka
Khandu Avhad vs Amar Syamprasad Mishra & Anr‘, reported in AIR
3 CRM(M) No. 70/2025
2021, SC 1616 and in ‘ODI Jerang vs Nabajyoti Baruah & Ors‘,
reported in 2023 Live Law (SC) 702.
05. Heard learned counsel for the petitioner at length and perused the record.
06. Prima facie case for indulgence is made out.
07. Issue notice to the respondent returnable within four weeks, subject to
taking steps for service by the petitioner within one week.
08. Registry is directed to summon the scanned record of the order dated
20.04.2023 from the Court of learned Special Mobile Magistrate, Passenger
Tax and Shops Establishment, Jammu and also the complaint titled ‘Brij
Bhushan, Managing Director, J&K Coop. Tourism and Housing
Corporation Ltd, Jammu V/s Anwar Anjum Khan & Anr’.
09. List on 05.03.2025.
10. In the meantime, subject to objections from other side and till next date of
hearing before the Bench, proceedings pending before the learned Special
Mobile Magistrate, Passenger Tax and Shops Establishment, Jammu in a
complaint titled ‘Brij Bhushan, Managing Director, J&K Coop. Tourism
and Housing Corporation Ltd, Jammu vs Anwar Anjum Khan & Anr’, shall
remain stayed.
11. Alteration/modification/vacation on motion.
(WASIM SADIQ NARGAL)
JUDGE
JAMMU
30.01.2025
Vijay
