HIGH COURT OF JAMMU &KASHMIR AND LADAKHAT SRINAGAR Reserved on: 18.03.2025 Pronounced on: 08.05.2025 CRM(M) No.57/2023 SIKANDER KHURSHEED DAR …PETITIONER (S) Through: Ms. Ahra Syed, Advocate. Vs. MOHAMMAD HIDAYAT ULLAH …RESPONDENT(S) Through: Mr. Syed Faisal Qadiri, Sr. Advocate, with Mr. Sikandar Hayat Khan, Advocate. CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE. JUDGMENT 1. The petitioner has sought quashing of complaint under Section 138 of the Negotiable Instruments Act [“for short ‘N.I Act”] filed by the respondent and pending before the Court of Judge Small Causes, Srinagar (hereinafter referred to as “trial court”). Challenge has also been thrown to the order dated 19.04.2022, whereby the learned trial court has issued the process against the petitioner/accused. The petitioner has also challenged the order 28.09.2022, whereby the learned trial court has dismissed the application filed by the petitioner for dropping of proceedings and has allowed the application filed by the respondent for amendment of the complaint. Page 2 of 9 The petitioner has also impugned two orders each dated 14.09.2022 and 15.12.2022 passed by the Court of 4th Additional Sessions Judge, Srinagar, whereby the revision filed by the petitioner against the orders dated 19.04.2022 and 28.09.2022 passed by the learned trial court, has been dismissed. 2. The respondent filed a complaint against the petitioner, alleging therein that the petitioner who is running the business of construction and building under the banner of “M/S Al Mahmood Builders Ltd.” had agreed that he would provide to the petitioner 2 BHK flat on Noth East corner side at Satbari South, Delhi Tehsil Mehrauli District Chattarpur, New Delhi, in respect of which an agreement came to be executed between the parties. The respondent paid the consideration amount, but when the petitioner/accused failed to provide the 2 BHK flat, the respondent/complainant approached him through respectable persons and also requested him through telephonic mode, whereafter he issued eight cheques for an amount of Rs.32.00 lacs vide Cheque Nos. 66712, 466713, 466714, 466715, 466716, 466717, 466718 and 466719 (each cheque amounting to Rs.4.00 lacs). When the above-mentioned cheques were presented before the J&K Bank Branch Byepass Nowgam, Srinagar, for encashment, the same were dis-honoured for insufficiency of funds. It is further averred in the complaint that a notice of demand was sent through registered post to the petitioner, which was received by him but despite that, he failed to pay the cheque(s) amount within the stipulated period, which compelled the respondent to file the complaint. 3. It appears that the learned trial court, after recording the preliminary statement of the respondent/complainant, issued the process against the petitioner in terms of order dated 19.04.2022. It is further borne out from the record that the petitioner moved an application for dropping of proceedings before the learned trial court on the ground that the cheques have been issued by “Sikander Home Building Cooperative Ltd.” but the company has not been impleaded as accused. However, the application was dismissed in terms of order dated 28.09.2022. By virtue of same order, the learned trial court allowed the application of the respondent seeking amendment of the complaint and M/S Al-Mehmood Builders Ltd. and M/S Sikander House Building Corporation Ltd. were arrayed as accused. A revision petition came to be preferred by the petitioner before the Court of learned 4th Additional Sessions Judge, Srinagar, against the orders, each dated 14.09.2022 and dated 28.09.2022 but the same was also dismissed in terms of order dated 15.12.2022. 4. The petitioner has challenged the complaint and the impugned orders, inter alia, on the following grounds: (I) That N.I Act in itself is a Code, and Section 138 of the said Act provides procedure for launching prosecution against an accused but the said procedure has not been followed in the instant case. (II) That in terms of the provisions of Section 141 of N.I. Act, commission of offence by the company is a condition precedent to attract the vicarious liability of others. In the instant case, it is the company which is drawer of the cheque, and the complainant has not only failed to array the company as accused but has also not complied with the statutory requirements of giving notice to the drawer. The complainant to overcome this serious infirmity/defect sought amendment seeking substitution of the company as accused in the complaint but the trial court without following the mandate of law allowed the said application which is an abuse of process of law. (III) That there are no specific averments in the complaint regarding role of the accused in the company which has issued the cheques in question but instead name of a different company owned by the accused is mentioned which is against the settled principles of law. (IV) That the trial court without scrutinizing the contents of the complaint and the documents placed on record by the complainant took cognizance of the matter in a casual manner without application of judicial mind and issued process against the petitioner. (V) That the amendment in a criminal complaint is alien to law as there are no provisions in the Code of Criminal Procedure which deals with amendment of complaint or substitution of accused. (VI) That the impugned orders do not spell out any valid reason as to why application for dropping of proceedings was not taken up on merits. The trial court, by allowing the amendment application carved out a case in favour of the complainant as the said amendment changed the nature of whole complaint and rendered the application for dropping of proceedings filed by the petitioner and all the defenses of the petitioner as infructuous. (VII) That the revisional court without considering the written arguments of the petitioner dismissed the revision petition and upheld the order passed by the trial court and overlooked the law laid down by the Supreme Court in Aneeta Hada vs. Godfather Travels & Tours (P) Ltd. (2012) 5 SCC 661 and S. M. S. Pharmaceuticals Ltd. vs. Neeta Bhalla, (2005) 8 SCC 89. 5. Learned counsel for the petitioner has argued that the learned trial court could not have allowed the amendment of the complaint by permitting the respondent to array the companies, namely, M/S Al-Mehmood Builders Ltd. and M/S Sikander House Building Corporation Ltd., as accused and that the learned trial court has not rightly decided the application for dropping of the proceedings. 6. Per contra, Mr. Syed Faisal Qadiri, learned senior counsel for the respondent, has argued that the matter is pending before the learned trial court for evidence of the petitioner/accused and even the petitioner/accused has appeared as witness on his own behalf, therefore, the proceedings before the trial court cannot be allowed to be scuttled by the petitioner at the fag-end of the trial. 7. Heard and perused the record. 8. The record depicts that during the pendency of the complaint, the petitioner filed an application for dropping of the proceedings whereas the respondent moved an application seeking amendment of the complaint for arraying the companies of the accused, namely, M/S Al-Mehmood Builders Ltd. and M/S Sikander House Building Corporation Ltd, as accused in the said complaint. The respondent also annexed an affidavit with his application seeking amendment of complaint, sworn/executed by the petitioner/accused, bearing the seals of M/S Al-Mehmood Corporates Ltd. and M/S Sikander House Building Cooperative Ltd. 9. The petitioner in his application before the learned trial court has stated that the cheques were issued by M/S Sikander House Building Cooperative Ltd. and the company was not arrayed as accused. The petitioner in this petition has shown himself to be a private limited company but the petition has not been filed by the company but by the accused in his personal capacity. The company and cooperative society have not chosen to assail the order dated 28.09.2022. The seal affixed on the cheques bears the impression of “Secretary, Sikander House Building Cooperative Ltd” whereas in the present petition, the petitioner has shown himself to be the private limited company. In this context, it would be apt to extract the relevant averment made in para (2) of the petition, which is as under: “That the petitioner is a private limited company and the respondent had some transactions with the petitioners company……” 10. The learned trial court has arrayed both M/S Al-Mehmood Builders Ltd. and M/S Sikander House Building Corporation Ltd as accused in the complaint, and it appears that the wrong names of companies were mentioned not only in the application but also in the order impugned. It appears that the cheques in question have been issued by the Secretary, M/S Sikandar House Building Cooperative Ltd. The respondent has very casually filed the complaint before the learned trial court and the petitioner is also competing with him in negligence, as he has shown himself to be the private limited company in this petition. The petitioner, while demonstrating his status, has not approached this Court with clean hands. 11. The petitioner has jumbled the facts and the inherent powers for quashing criminal proceedings cannot be exercised when the facts are disputed. Moreso, much water has flown since the process was issued against the petitioner and amendment was allowed by the learned trial court, as after the amendment was allowed, the complainant/respondent concluded his evidence and even the petitioner/accused appeared as witness in his defence. Vide order dated 25.05.2024, the evidence of the petitioner/accused stands closed. Therefore, in view of the fact that the matter is pending before the learned trial court for final arguments, this Court does not deem it proper to show indulgence at this stage, particularly when the petitioner has not approached this Court with clean hands and undisputed facts. It is worthwhile to observe here that neither the Company nor the Cooperative Society has chosen to assail the order dated 28.09.2022. 12. In view of the above, this Court does not find any reason to show indulgence. The petition is dismissed. The trial court shall proceed in the matter to decide the complaint in accordance with law. Needless, to say that this Court has not expressed any opinion in respect of the merits of the claims of the parties. 13. A copy of this order be sent to the learned trial court for information and compliance. (RAJNESH OSWAL) JUDGE Srinagar 08.05.2025 “Bhat Altaf-Secy” Whether the order is reportable: No Nissar Ahmad Bhat I attest to the accuracy and authenticity of this document 09.05.2025 10:17