Jammu & Kashmir High Court – Srinagar Bench
Adil Ahmad Sofi vs Javid Ahmad Sofi on 17 July, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
2026:JKLHC-SGR:229
HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 07.07.2026
Pronounced on: 17.07.2026
Uploaded on: 17.07.2026
Whether the operative part or full
judgment is pronounced: Full
Crl R. No.24/2024
ADIL AHMAD SOFI ...PETITIONER(S)
Through: - Mr. Sheikh Hilal, Advocate, with
Ms. Shaziya Kamal, Advocate.
Vs.
JAVID AHMAD SOFI ...RESPONDENT(S)
Through: - Mr. Ateeb Kanth, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner, through the medium of present revision
petition, has challenged judgment dated 28.05.2024 passed
by the learned Principal Sessions Judge, Budgam
(hereinafter “the Appellate Court”) as also the judgment
dated 12.07.2023 passed by the learned Judicial Magistrate
1st Class (Munsiff), Chadoora (hereinafter “the Trial
Magistrate). Vide judgment dated 12.07.2023 passed by the
learned Trial Magistrate, the petitioner has been convicted of
offence under Section 138 of the Negotiable Instruments Act
(for short “the N. I. Act“) and he has been sentenced to
undergo simple imprisonment of one year along with fine of
Rs.19,20,000, which has been directed to be paid to the
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respondent as compensation. Vide the impugned judgment
dated 28.05.2024, passed by the learned Appellate Court,
judgment dated 12.07.2023 passed by the learned Trial
Magistrate has been upheld and appeal of the petitioner has
been dismissed.
2) It appears that a complaint came to be filed by the
respondent against the petitioner alleging commission of
offence under Section 138 of the N. I. Act by him. The subject
matter of the complaint was a cheque in the amount of
Rs.9,60,000/ issued by the petitioner in favour of the
respondent as according to the complainant, the said
amount was due to him on account of certain business
transactions between the parties. The learned Trial
Magistrate, after taking cognizance of the offence, issued
process against the petitioner, who appeared before the
learned Trial Magistrate.
3) On 10.03.2023, the learned Trial Magistrate recorded
the plea of the petitioner under Section 251 of the Cr. P. C.
In his said statement, the petitioner, while admitting the
issuance of the cheque in question in favour of the
respondent, stated that there was a business transaction
going on between the parties and in this connection, he had
handed over two cheques to the respondent as security
deposit, out of which one cheque was for an amount of
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Rs.9,60,000, whereas the other one was blank. The
petitioner further stated that he was not aware that the
funds to his credit in his bank account were insufficient. He
also stated that during the business transaction, the
complainant had invested a sum of Rs.9,60,000, whereas he
had invested an amount of Rs.30,40,000. The
petitioner/accused finally proceeded to state that as soon as
he receives the amount from the complainant, he will
liquidate the outstanding liability of the complainant.
4) The record shows that during the pendency of the
complaint, petitioner/accused paid an amount of Rs.50,000
to the respondent/complainant and the counsel for the
petitioner sought time to repay the balance amount. The
learned Trial Magistrate treated the statement of the
petitioner recorded under Section 251 of the Cr. P. C as an
admission of guilt by him and proceeded to convict him in
terms of impugned order dated 12.07.2023. Accordingly, the
sentence of imprisonment and fine was imposed upon the
petitioner.
5) The petitioner challenged the impugned judgment
passed by the learned Trial Magistrate by way of an appeal
before the learned Appellate Court. Vide impugned order
dated 28.05.2024, the learned Appellate Court proceeded to
dismiss the appeal and to uphold the judgment of conviction
recorded by the learned Trial Magistrate.
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6) The petitioner has challenged the impugned orders by
way of present revision petition by contending that he has
never pleaded guilty and that there has been no unequivocal
admission of guilt on his part. Thus, the learned Trial
Magistrate was legally bound to hold trial of the case instead
of recording the judgment of conviction against the
petitioner. It has further been contended that the learned
Trial Magistrate has not followed the procedure prescribed
under Section 252 of the Cr. P. C, which is mandatory in
nature. It has also been contended that statement of the
petitioner recorded under Section 251 of the Cr. P. C has not
been properly appreciated by the learned Trial Magistrate.
7) I have heard learned counsel for the parties and
perused the impugned orders, the grounds of revision and
the trial court record.
8) The main contention of the petitioner is that his
statement recorded under Section 251 of the Cr. P. C does
not constitute an unequivocal admission of guilt on his part
and, therefore, no conviction could have been recorded on
the basis of the said statement. Before proceeding to
determine the merits of this contention of the petitioner, it
would be apt to notice the legal position with regard to
recording of plea of guilt of an accused. In this regard, it
would be necessary to have a look at the provisions
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contained in Sections 251 and 252 of the Cr. P. C, which
prescribe the procedure regarding recording of statement of
an accused in a summons trial case. The said provisions
read as under:
“251. Substance of accusation to be stated.–When in a
summons-case the accused appears or is brought before
the Magistrate, the particulars of the offence of which he
is accused shall be stated to him, and he shall be asked
whether he pleads guilty or has any defence to make, but
it shall not be necessary to frame a formal charge.
252. Conviction on plea of guilty.–If the accused pleads
guilty, the Magistrate shall record the plea as nearly as
possible in the words used by the accused and may, in his
discretion, convict him thereon.”
9) From a perusal of Section 251 of the Cr. P. C, it is clear
that when an accused appears before a Magistrate, the
particulars of the offence of which he is accused have to be
stated to him and he has to be asked whether he pleads
guilty or he has any defence to make. However, there is no
requirement of framing a formal charge. As per Section 252
of the Cr. P. C, if the accused pleads guilty, such plea of the
accused has to be recorded by the Magistrate as nearly as
possible in the words used by the accused.
10) The Supreme Court has, in the case of Mahant
Kaushalya Das v. State of Madras, AIR 1966 SC 22, held
that requirements of Section 243 of the old Code of Criminal
Procedure, which is in pari-materia with Section 252 of the
Criminal Procedure Code, 1973, are mandatory in character
and a violation of these provisions vitiates the trial and
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renders the conviction legally invalid. It has been observed
by the Supreme Court that the requirement of the said
provision is not a mere empty formality, but it is a matter of
substance intended to secure proper administration of
justice. The Supreme Court emphasized the fact that strict
compliance of provisions contained in Section 243 (old Code)
is necessary because the right of appeal of the accused
depends upon the circumstance whether or not he has
pleaded guilty and for this reason, legislature requires that
exact words used by the accused in his plea of guilt should,
as nearly as possible, be recorded in his own language in
order to prevent any mistake or misapprehension.
11) This Court has, in the case of New Raginaya Goods
Mart and another v. State, AIR 1960 J&K 108, held that
the accused must admit in clear terms all facts constituting
the offence, only then he is liable to be convicted on a plea of
guilty
12) Again, in the case of Waheed Hussain v. Mohammad
Farooq Rangrez, 2006 (I) S. L. J. 155, this Court has held
that a Magistrate has to state the particulars of offence
alleged in the complaint to the accused and has to ask the
accused to show cause why he should not be convicted.
13) In P. Saravanan v. State (Crl. R. C(MD) No.354 of 2016
decided on 13.07.2016), Madras High Court has, while
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dealing with the aforesaid aspect of the matter, made the
following observations:
“…Further, it is pertinent to note that even in Section 251 of
Cr.P.C., it is stated that no formal charge need be framed in
a summons case. So, stating to the accused the accusation
as against him in a summons case under Section 251 of
Cr.P.C. become very important. It is giving an opportunity to
the accused to meet the case/accusation as against him, as
already stated, it is also a matter of principles of natural
justice. It is also in furtherance of rights of the accused.
When the accused admit the offence under Sections 251 of
Cr.P.C., and under Section 252 of Cr.P.C., the Judge can
accept it provided it is unqualified, unambiguous, clear cut
and voluntary, otherwise, he can refused to accept the plea,
he can direct the prosecution to produce the witness,
because as and when an accused admit the offence
under Section 251 of Cr.P.C., it is not incumbent upon the
Judge to immediately accept the plea. Such a discretion has
been given to the trial Court under Section 252 of Cr.P.C. One
thing is clear, a reading of the provisions of Section 251 of
Cr.P.C., makes it clear that the trial Judge must clearly put to
the accused what the accusation as against him, what penal
provision of law he is violated, what is the reasons therefor
and it gives an opportunity to the accused to put forth his
defence, so as to enable the trial Court to appreciate the
same and to appreciate his defence in the light of the
evidence adduced by the prosecution. A reading of Section
251 of Cr.P.C., will clearly shows that the requirement
in Section 251 of Cr.P.C., is mandatory in nature. Not
following him will make the very prosecution vitiated. In the
summons case, such a strict following of the mandatory
provisions of Law which are intended to protect a person,
who has been prosecuted for a summons offence become
very important, because as per Section 375 of Cr.P.C., no
appeal will lie as against conviction recorded based on the
plea of the accused. But, notwithstanding the provisions
of Section 375 of Cr.P.C., if a conviction recorded and
sentence awarded based on the plea of guilty made by the
accused is not in accordance with Law and it is in violation of
settled principles of Law and the mandatory provisions of
law. Then, it is legality, proprietary, regulatory can be
questioned under the concurrent revisional jurisdiction of
this Court and the High Court under Sections 397 r/w. 401
of Cr.P.C.”
14) From the foregoing analysis of the legal position, it is
clear that unless an accused makes an unqualified,
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unambiguous, clear and voluntary admission of accusations
leveled against him, he cannot be convicted of the offences
alleged. It is also clear that before recording the plea of guilt,
the accused has to be asked whether he pleads guilty and
his plea has to be recorded as nearly as possible in the words
used by him. A strict compliance to the provisions contained
in Sections 251 and 252 of the Cr. P. C is mandatory. This
is so because when an accused is convicted on the basis of
his admission of guilt, he does not have a right of appeal.
This is clear from a reading of Section 375 of the Cr. P. C.
Because valuable right of an accused to file an appeal
against the judgment of conviction has been taken away by
the legislature, therefore, a Magistrate, before convicting an
accused on the basis of his admission, has to be very sure
that such admission of the accused is voluntary,
unqualified, unambiguous and clear in nature.
15) Turning to the facts of the present case, the petitioner
while, recording his statement under Section 251 of Cr. P. C,
has stated that there is a business transaction between him
and the respondent and in this connection, he deposited two
cheques, including the cheque which is subject matter of the
complaint, with the respondent as security deposit. The
petitioner further went on to state that while he has invested
an amount of Rs.30,40,000, in the business, the respondent
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has invested an amount of Rs.9,60,000. While concluding
his statement, the petitioner stated that he will pay the
amount to the respondent, provided he receives his share of
the amount from him.
16) From the aforesaid statement of the petitioner, it is
clear that he has not admitted the guilt. The only admission
which he has made is with regard to issuance of cheque and
the signatures appearing on the said cheque. Beyond this,
he has not admitted anything. The petitioner has not
admitted that there is a legally enforceable debt due to the
respondent from him, nor has he admitted that he is going
to pay the cheque amount to the respondent
unconditionally.
17) A perusal of the statement of the petitioner recorded
under Section 251 of the Cr. P. C would reveal that the
learned Trial Magistrate has not put all the facts alleged in
the complaint which constitute the offence under Section
138 of the N. I. Act to the petitioner. Service of notice of
demand upon the accused is an essential ingredient of
offence under Section 138 of the N. I. act. The allegations
relating to service of notice upon the petitioner have not at
all been put to the petitioner while recording his plea under
Section 251 of the Cr. P. C. Thus, it can safely be stated that
the alleged admission made by the petitioner in his
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statement under Section 251 of the Cr. P. C is not
unqualified, unambiguous and unconditional. On the basis
of such a statement, it was not open to the learned Trial
Magistrate to record conviction of the petitioner.
18) Learned counsel for the respondent has submitted that
during pendency of the complaint, the petitioner has made
payment of Rs.50,000, to the respondent, and that his
counsel has also made a statement before the Court to repay
the balance amount. Mere payment of Rs.50,000, to the
complainant during pendency of the complaint would not
form a ground for convicting the petitioner, particularly
when he has taken a specific stand in his statement under
Section 251 of the Cr. P. C that there is a business
transaction between the parties and that they have to settle
the accounts, inasmuch as he has to receive some amount
from the respondent and in turn he has to pay some amount
to him. In the absence of an unqualified and unambiguous
admission of guilt by the petitioner/accused, he could not
have been convicted of the offence alleged.
19) Coming to the judgment of the learned Appellate Court,
it is to be noted that in terms of Section 375 of the Cr. P. C,
no appeal is permissible against a conviction recorded on the
basis of plea of guilt. Therefore, the learned Appellate Court
had no jurisdiction to entertain the appeal filed by the
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respondent against the judgment of Trial Magistrate. The
impugned order passed by the learned Appellate Court is,
therefore, without jurisdiction.
20) For what has been discussed hereinbefore, the
impugned order passed by the learned Trial Magistrate, as
upheld by the learned Appellate Court, is not sustainable in
law and the same deserves to be set aside.
21) Accordingly, the revision petition is allowed and the
impugned order passed by the learned Trial Magistrate, as
upheld by the learned Appellate Court, is set aside. The
matter is remanded to the learned Trial Magistrate with the
direction to proceed further in the complaint in accordance
with law.
22) A copy of this judgment be sent to the learned Trial
Magistrate for information and compliance.
(Sanjay Dhar)
Judge
SRINAGAR
17.07.2026
“Bhat Altaf-Secretary”
Whether the judgment is reportable: YES/NO
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