Serial No. 35 Regular Cause List. HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CRM(M) 742/2023 CrlM(1693/2023). ABDUL RASHID BHAT(SENIOR CITIZEN). …Petitioner(s) Through: Mr. Lone Altaf, Advocate. VERSUS GHULAM MUSTAFA RATHER. Through: None. …Respondent(s) CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE. ORDER 26.05.2025 01. The petitioner, through the medium of the present petition, has challenged Order dated 12th of September, 2023 passed by the Court of learned Principal Sessions Judge, Budgam (hereinafter to be referred to as ‘the Revisional Court’), whereby the Order dated 1st of August, 2022 passed by the Court of learned Judicial Magistrate, 1st Class (Munsiff), Chadoora in a complaint filed by the petitioner against the respondent for commission of an offence punishable under Section 138 of the Negotiable Instruments Act has been set aside and the learned trial Magistrate has been asked to pass fresh order. 02. Heard learned counsel for the petitioner and perused the record. 03. It appears that the petitioner has filed a complaint under Section 138 of the Negotiable Instruments Act against the respondent alleging therein that the respondent/ accused had issued two cheques, one dated 20th of April, 2022 for an amount of Rs. 2.30 lacs and another dated 20th of June, 2022 for an amount of Rs. 3.00 lacs, in favour of the petitioner for discharging his liability towards him. It has been alleged in the complaint that, when presented for encashment before the Banker, the said cheques were returned unpaid for insufficiency of funds in terms of Memo dated 20th of June, 2022, whereafter a legal notice of demand dated 14th of July, 2022 came to be served upon the respondent/ accused through registered post, but in spite of receipt of the said notice, the outstanding amount has not been paid by the respondent to the petitioner. This, compelled the petitioner to file the complaint before the learned trial Magistrate who, vide its Order dated 1st of August, 2022, after analysing the facts alleged in the complaint as also the affidavit and the preliminary statement of the complainant/ petitioner herein recorded on oath, came to the conclusion that prima facie offence under Section 138 of the Negotiable Instruments Act is made out against the respondent and, accordingly, process was issued against the respondent. 04. It seems that the respondent herein challenged the aforesaid order of summoning passed by the learned trial Magistrate before the learned Principal Sessions Judge, Budgam by way of a revision petition which came to be allowed by the learned Revisional Court in terms of impugned Order dated 12th of September, 2023. While setting aside the Order of the learned trial Magistrate, the learned Revisional Court has observed that the learned trial Magistrate has not applied its mind to the facts of the case so as to assess that prima facie case is made out against the respondent/ accused and that the learned trial Magistrate has not ascertained as to whether the ingredients of the offence under Section 138 read with Section 142 of the Negotiable Instruments Act are made out. 05. If we look at the Order passed by the learned Magistrate on 1st of August, 2022, it runs into four pages and, while passing the said Order, the Magistrate has noted all the allegations made in the complaint against the respondent and he has also referred to the documents on record as well as the preliminary evidence led by the complainant, whereafter the trial Magistrate has come to the conclusion that prima facie offence under Section 138 of the Negotiable Instruments Act is made out against the respondent and, accordingly, the summons were issued against him. 06. This Court fails to understand as to on what ground the learned Revisional Court has framed its opinion that the trial Magistrate has not applied its mind to the facts of the case. It is a settled law that at the time of taking cognizance of an offence and issuing process against an accused, the Magistrate is not required to pass a detailed order, but what is necessary is that the order of summoning passed by the Magistrate has to reflect application of mind on his part to the averments made in the complaint, the preliminary evidence and the material/ documents on record. This is what has been done by the learned trial Magistrate in the present case, while passing Order dated 1st of August, 2022. In fact, the learned Magistrate has gone a step ahead by narrating all the allegations made in the complaint in its Order dated 1st of August, 2022, which was not necessary at all. The Order passed by the learned Magistrate clearly reflects application of mind on his part to the material on record. Therefore, the observations of the learned Revisional Court to the contrary are without any substance. 07. In view of above, the learned Revisional Court, while passing the Order impugned, has exceeded its jurisdiction and has acted with a material illegality. The impugned Order passed by the learned Revisional Court, as such, cannot be sustained in law. 08. For the foregoing reasons, the instant petition is allowed and the impugned Order dated 12th of September, 2023 passed by the learned Revisional Court is set aside. The learned trial Magistrate shall proceed ahead in the complaint filed by the complainant/ petitioner herein expeditiously in accordance with law. 09. Disposed of. (Sanjay Dhar) Judge SRINAGAR 26.05.2025 Showkat Khan