Jammu & Kashmir High Court – Srinagar Bench
Mohammad Maqbool Bhat vs Mohammad Shafi Naik on 29 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
128
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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CRM (M) No. 434/2025
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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CRM (M) No. 434/2025
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
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