@JUDGMENTTAG-ORDER
Arun Kumar Goel, J.@mdashThis petition is directed against the order dated 24th January, 1997 passed by learned sub-registrar (Judicial
Magistrate) 1st Class, Jammu. By means of impugned order application filed by the petitioner for dismissal of the complaint, filed by the
respondents u/s 138 of Negotiable Instruments Act, has been dismissed.
2. Brief facts giving rise to this case are that a complaint u/s 138 of Negotiable Instruments Act read with Section 420 of the R.P.C. was filed by
respondents against the petitioner on the plea that a cheque dated 14-4-1995 in the sum of Rs. 40,000/- was issued by the petitioner drawn on his
banker namely Jammu Central Co-operative Bank Limited, Rehari Colony Branch, Jammu in the joint name of both the respondents. This cheque
was sent for collection by the respondents through their banker i.e. State Bank of India, Rehari Colony Branch, Jammu twice on 21-4-1995 and
25-4-1995. On both these occasions it was returned with the memo ""insufficient funds"". As per assurance of petitioner it was again sent for
collection through their banker i.e. State Bank of India (supra) on 21 -8-1995 but again was received back on 25-8-1995 by the respondents with
the memo of the bank dated 23-8-1995 ""insufficient funds"". After the receipt of dishonoured cheque, a legal notice dated 1-9-1995 was issued as
per requirement of Section 138 of Negotiable Instruments Act, which was duly received by the petitioner as per facts detailed in the complaint.
Further it was pleaded by the respondents that petitioner with the intention to defraud both of them issued the aforesaid cheque when he was
aware that there were insufficient funds for honouring the cheque in question.
3. Trial Court on the aforesaid allegations and after recording the preliminary evidence as well as on consideration of the documents produced
before it ordered the issuance of process against the petitioner vide its order dated 14-10-1995. It appears that during the course of proceedings
before the trial Court an application was filed by the petitioner for dismissal of the complaint on the ground that the allegations made therein even if
taken on their face value and also accepted in entirety, do not constitute the offences alleged against him, besides raising other plea that there is
nothing on record to disclose the nature of debt or liability against which the cheque in question was issued. It was further pleaded that the
petitioner does not owe any debt or liability to the respondents nor he had any business transaction with them. This application came to be
contested and resisted by the respondents, who amongst other things pleaded that the amount in question was owed by the petitioner towards the
Committee Loan availed by him from the respondents. Thus the application came to be disposed of. Since none appeared in this case today on
behalf of the petitioner when it was taken up for hearing, the file has been examined with the assistance of learned counsel appearing for
respondents.
4. u/s 118(a) of the Act (supra) there is a statutory presumption regarding consideration attached to a Negotiable Instrument which reads as under
:
(a) of consideration.- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been
accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred, for consideration.
5. In addition to this statutory presumption regarding consideration attached to a negotiable instrument, further presumption is also attached u/s 139
of the said Act, which reads as under :
139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the
nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
6. Further, Statutory presumptions referred to hereinabove are of course subject to proof to the contrary, there is another reason on which this
petition must fall. It is no where the case of petitioner in the present petition that he had not issued the cheque in question and or it does not bear his
signatures. Whole thrust of the case as pleaded in the grounds of present petition is that the Court below had ignored the provisions of Section 138
of the Act, besides repeating the grounds on which the application was filed before the trial Court and which have been noticed hereinabove. It is
also not the case of petitioner that notice as envisaged u/s 138 of Negotiable Instruments Act was not served upon him in accordance with law.
7. In the context of present case when a reference is made to the complaint filed by the respondents before the trial Court, it cannot be said that no
prima facie case is made out. Not only this, but when a further reference is made to the statement recorded by the trial Court before summoning
the petitioner as well as the documents attached along with the complaint, it is clear that there was enough material to have summoned the
petitioner. It may further be appropriate to notice here that statutory presumption under Sections 118(a) and 139 of the Act (supra) is rebuttable,
which can only be done by proving something to the contrary during the course of trial.
8. Even otherwise it cannot be said that there is any abuse of the process of law & Court or there is any other such suggestion which warranted
interference by the trial Court or by this Court in the present petition filed u/s 561-A of the Cr. P.C. In the background facts and circumstances of
this case, referred to hereinabove, on the other hand clearly indicate that it is the petitioner who has made an attempt to misuse as well as abuse the
process of law as well as Court. In this context this Court cannot loose sight of the fact that after the summoning order had been passed on 14-10-
1995 and till the passing of impugned order, petitioner has successfully ensured that he does not allow the case to proceed. File of the trial Court
further shows that on a number of occasions warrants had to be issued for procuring the presence of petitioner. It should not have taken so long
for the trial Court to have disposed of this matter finally.
9. In addition to above on the basis of cases reported in S. Mohan Singh Vs. Madan Lal, , ""Ashok Ghulati, Director Ess Gee Woolen Mills Pvt.
Ltd. Green Avenue, Amritsar v. Raghvir Khajuria"" and Inderjeet Kour Vs. Gandotra Trading and Leasing Corpn., , it is clear that no case is made
out called for interference in the present proceedings.
10. For the reasons set out hereinabove this petition is dismissed and all interim orders passed by this Court in the present petition are vacated.
Respondents through their counsel are directed to appear before the trial Court on 30th November, 1998. Registry will ensure that the file of the
trial Court reaches the Court well before the date fixed. Trial Court is further directed to dispose of this case at its earliest and in no case later than
31st March, 1999. Necessity of issuing this direction has arisen looking to the peculiar facts and circumstances of this case.