h475 S.No.142 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Mohd. Sikander Dar ...Petitioner(s) Through:-Mr. Mohammad Iqbal Bhat, Advocate V/s Farooq Ahmed Mir ...Respondent(s) Through:- Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 25.04.2025 1. The petitioner has challenged the complaint filed by the respondent against him alleging commission of offence under Section 138 of the Negotiable Instruments Act, which is stated to be pending before the Court of Additional Special Mobile Magistrate, Doda. Challenge has also been thrown to the proceedings emanating from the said complaint. 2. Heard and considered. 3. It appears that the impugned complaint has been filed by the respondent against the petitioner alleging therein that he is a labour supplier and the respondent, who is a contractor by profession, was executing contract of construction of school building at Balsu Kulgam. It has been submitted that on 10th June, 2022, the petitioner had entered into an agreement with the respondent, whereby he had undertaken to pay an amount of Rs.30,00,000/- to the respondent and in this regard he issued a cheque for the aforesaid amount on 13th June, 2022. It was also agreed that CRM(M) No.353/2025 Crl No.692/2025 2 the remaining sum of Rs.17,00,000/- shall be paid by the petitioner to the respondent on completion of the second storey. 4. According to the respondent/complainant, he presented the aforesaid cheque of Rs.30,00,000/- for encashment with his banker i.e. Jammu & Kashmir Bank Branch Marmat, Doda on 22nd July, 2022 but the same was returned unpaid for insufficiency of funds. Thereafter, the respondent is stated to have served a notice of demand upon the petitioner on 2nd August, 2022 and when the petitioner failed to liquidate the amount of cheque, impugned complaint came to be filed before the trial Magistrate. 5. The petitioner has challenged the impugned complaint on the ground that the agreement, on the basis of which the impugned complaint has been filed, has also been challenged by the petitioner before the competent Court of law, as such, there are two parallel proceedings going on for the same cause of action, which is impermissible in law. It has been further contended that the petitioner is not a contractor by profession and infact he is working as X-ray technician in the Department of Health, hence assertion of the respondent/complainant that the petitioner is a contractor is false. It has been submitted that the petitioner has not constructed any building at village Balsoo, Kulgam, hence the impugned complaint is based on false assertions. It has been submitted that the respondent/complainant has managed a sham transaction in a fabricated way to cheat and loot the petitioner. In short, the petitioner has submitted that there is no legally recoverable debt due to the respondent from the petitioner, as such, the impugned complaint is not maintainable. 3 6. So far as offence under Section 138 of Negotiable Instruments Act is concerned, it is constituted once the cheque drawn by an accused in favour of the complainant gets dishonoured for insufficiency of funds. The cause of action to file complaint against the accused arises in favour of the complainant once after service of demand of notice, accused fails to pay the cheque amount within one month of service of demand of notice. Section 139 of the Negotiable Instruments Act raises a presumption in favour of holder of a cheque that the said cheque has been received in discharge of whole or part of any debt or other liability. This presumption is rebuttable in nature. 7. The petitioner/accused contends that there was no agreement between him and the respondent regarding supply of labour for construction of school building at village Balsoo, Kulgam. It is further being claimed by the petitioner that he is not a contractor nor has he constructed any building and that the impugned complaint is based on false assertions, inasmuch as the cheque amount does not represent any debt or other liability, which is recoverable by the respondent from the petitioner. 8. The veracity of the aforesaid defence taken by the petitioner for rebutting the presumption that has arisen in favour of the respondent in view of the provisions of Section 139 of the Negotiable Instrument Act can be ascertained during the trial of the case and the same cannot be gone into by this Court in the present proceedings. This Court while exercising its powers under Section 528 BNSS cannot hold a mini trial for determining the truth or otherwise of the defence set up by the petitioner/accused by way of present petition. 4 9. For the foregoing reasons, it is not a fit case where this Court should exercise its powers under Section 528 of BNSS to quash the impugned complaint. The petition lacks merit and is dismissed as such, leaving it open to the petitioner to raise the defences have been projected by him in the present petition before the learned trial Magistrate at an appropriate stage. (Sanjay Dhar) Judge Jammu 25.04.2025 Vinod. Whether order is reportable: Yes/No