Jammu & Kashmir High Court – Srinagar Bench
Ghulam Mohammad Payer vs Amanulla Khan on 11 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
S. No.106
Suppl. 1
,,, HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM(M) No.389/2025
GHULAM MOHAMMAD PAYER
.....Petitioner(s)
Through: Mr.Tariq Ahmad Lone, Advocate.
V/s
AMANULLA KHAN
... ..Respondent(s)
Through : None
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
11.07.2025
1. The petitioner through the medium of present petition has
challenged complaint filed by the respondent against him for
commission of offences under Section 420, 506 IPC which is
stated to be pending before the Court of Judicial Magistrate 1st
Class/Sub Judge, Kupwara (herein after referred to as “the trial
Magistrate”).
2. As per the contents of the impugned complaint the
petitioner represented himself to be a worker of BJP and in the
month of May, 2020 he approached the respondent and asked for
a list of his un-employed relatives assuring him that they would be
appointed as Class IV employees in Central Government
Departments under a scheme meant for the party workers. It is
further alleged in the impugned complaint that from May, 2020 to
September, 2020, the respondents after collecting an amount of
Rs.18,58,000/- (Rupees eighteen lacs and fifty eight thousand)
from his relatives, handed over the same to the petitioner against
proper receipt. The respondent is stated to have transferred
further sum of Rs.20,000/- (Rupees twenty thousand) to the
account of the petitioner. It is alleged in the complaint that even
after lapse of two years, the petitioner/accused has not employed
the respondent or any of his relatives and in this manner he has
been duped by the petitioner.
3. It seems that the learned trial Magistrate, after recording
preliminary evidence of the complainant, took cognizance of the
offences and vide order dated 17.07.2023 issued process against
the petitioner after drawing satisfaction that offences under
Section 420, 506 IPC are prima facie made against the petitioner.
4. The petitioner has challenged the impugned complaint on
the grounds that dispute between the parties is purely relating to
the financial transaction which has been given a criminal colour
by the respondent. It has been further contended that the
allegations made in the impugned complaint do not constitute
offence of cheating against the petitioner. It has also been
contended that the respondent has not followed the procedure
under Section 154 of Cr.P.C, inasmuch as he has filed the
CRM(M) No.389/2025 2|P a g e
complaint against the petitioner before learned Magistrate instead
of approaching the police for registration of FIR. It has been
further contended that it was incumbent upon the learned
Magistrate to hold an inquiry in terms of Section 202 of Cr.P.C
before issuing process against the petitioner. The learned counsel
has, while relying upon judgment in Lalita Kumari vs. Govt. of
U.P, (2014) 2 SCC 1, contended that without holding the
preliminary inquiry, the process could not have been issued
against the petitioner. Lastly, it has been contended that learned
trial Court while issuing process against the petitioner has not
applied its mind and has acted in a mechanical manner. To
support his contention the learned counsel has relied upon the
judgments of the Supreme Court in the cases of Anil Kumar vs.
M.K.Aiyappa, (2013) 10 SCC 705 and Pepsi Food Ltd. and
another vs. Special Judicial Magistrate and another, (1998) 5 SCC
749.
5. I have heard learned counsel for the petitioner and perused
record of the case.
6. If we have a look at the contents of the impugned
complaint, it is clearly alleged by the complainant that under the
pretext of providing Government job to the complainant and his
relatives, the petitioner representing himself to be a worker of
BJP, has collected a sum of Rs.18,58,000/- (Rupees eighteen lacs
CRM(M) No.389/2025 3|P a g e
and fifty eight thousand) from May 2020 to September 2020 and
another sum of Rs.20,000/- (Rupees twenty thousand) through
bank transfer. The specific allegation made in the complaint is
that as promised, no appointment orders were handed over by the
petitioner to the respondent/complainant or his relatives and when
the respondent/complainant sought his money back from the
petitioner, he threatened to kill him. These allegations prima facie
show that the petitioner has made a false representation to the
respondent and by adopting deception induced the respondent/
complainant to deliver money to him. Thus, ingredients of
offence under Section 420 IPC are clearly made out from
allegations made in the complaint. The contention of the
petitioner that it is purely a financial transaction between the
petitioner and the respondent is wholly misconceived, because it
is not a case of commercial transaction between the parties, but it
is a case where the petitioner has allegedly practised deception
and fraud upon the respondent/complainant and duped him of a
huge amount of money. Therefore, contention of learned counsel
for the petitioner is without any merit.
7. So far as contention of learned counsel for the petitioner
that instead of filing a criminal complaint before the trial
Magistrate, the petitioner should have approached the Police for
registration of FIR, is concerned, the same is without any force. A
CRM(M) No.389/2025 4|P a g e
complainant has the option either to approach the Police agency
with an application for registration of FIR under Section 154
Cr.P.C or he/she has option to approach the Magistrate with a
complaint under Section 200 of the Cr.P.C. The discretion
entirely lies with the complainant either to approach the
Magistrate or to approach the Police and there is no bar to
approach the Magistrate with a criminal complaint instead of
approaching the Police even in cases where cognizable offences
are disclosed from the contents of the criminal complaint.
8. The contention of the learned counsel for the petitioner that
learned trial Magistrate should have directed investigation in
terms of Section 202 Cr.P.C before issuing process against the
petitioner, is also without any merit. It is only in the cases, where
the Magistrate is unable to decide whether or not there is
sufficient ground for proceeding that he is required to direct
investigation of a case in terms of section 202 of Cr.P.C and
postpone the issue of process against the accused. In a case of
present nature, where the allegations made in the complaint
supported by the preliminary evidence clearly disclose
commission of offence under Section 420 of IPC, it was not at all
necessary for the learned Magistrate to direct investigation in
terms of Section 202 of Cr.P.C before issuing process against the
CRM(M) No.389/2025 5|P a g e
petitioner. The ground urged by learned counsel for the petitioner
is, therefore, without any merit.
9. So far as the ground relating to non-application of mind in
issuing process against the petitioner is concerned, the same is
also without any merit. A perusal of order dated 17.07.2023
passed by learned trial Magistrate clearly reveals that the learned
Magistrate has framed opinion for taking cognizance of offences
under Section 420/506 IPC after analyzing contents of the
complaint and the evidence. The order passed by the learned trial
Magistrate, whereby, the process has been issued against the
petitioner, may not be detailed one, but it clearly reflects
application of mind on part of the learned Magistrate. It bears
reference to the statements of the witnesses recorded and the
contents of the impugned complaint, meaning thereby, the learned
trial Magistrate has applied his mind while passing the said order.
10. For the foregoing reasons I do not find any merit in this
petition. The same is, accordingly, dismissed.
(SANJAY DHAR)
JUDGE
SRINAGAR
11.07.2025
Sarveeda Nissar
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
Sarveeda Nissar CRM(M) No.389/2025 6|P a g e
I attest to the accuracy and
authenticity of this document
every page at bottom left side
15.07.2025 10:49
[ad_1]
Source link