Jammu & Kashmir High Court
Sanjay Gupta Age 63 Years vs Vipan Kumar Mehta on 3 August, 2026
HIGH COURT OF JAMMU & KASHMIR AND LADAKH 2026:JKLHC-JMU:2403
AT JAMMU
CRM(M) 743/2024
Reserved on: 15.07.2026
Pronounced on: 03.08.2026
Uploaded on: 04.08.2026
Whether the operative part
or full judgment is pronounced: Full
Sanjay Gupta age 63 years .... Petitioner/Appellant(s)
S/O Shri Jyoti Prakash Gupta
R/O House No.50 Ward No.1
Near Tiny Scholar, Kathua
Through:- Mr. Sourav Sharma, Advocate.
V/s
Vipan Kumar Mehta .....Respondent(s)
S/o Sh. Satpal
R/O Dhangri
Tehsil and District Rajouri
Through:- Mr. Rahul Pant, Sr. Advocate with
Mr. Anirudh Sharma, Assisting
Counsel.
CORAM: HON‟BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
Prayer:-
1. Through the medium of the instant petition filed under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the petitioner seeks
quashment of order dated 27.06.2024 passed by the learned Sub Judge
(Special Mobile Magistrate), Rajouri, whereby process has been issued
against him in a complaint under Sections 138 and 142 of the Negotiable
Instruments Act, 1881, titled ‘Vipan Kumar Mehta v. Sanjay Gupta’, bearing
File No. 84/2024. The petitioner also seeks quashment of the aforesaid
complaint, contending that the same is an abuse of the process of law.
2. It is averred in the petition that the petitioner was the successful bidder for
a liquor vend at Ramnagar for the financial year 2022-2023 and during the
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year 2022 his cheque book bearing cheque Nos. 266301 to 266400 wasmisplaced. According to the petitioner, immediately upon discovering the
loss, he approached his banker on 13.12.2022 and requested stoppage of
payment of the entire cheque book. It is also submitted that the said
request was duly acted upon by the bank.
3. The petitioner further contends that the respondent thereafter instituted a
complaint under Section 138 of the Negotiable Instruments Act alleging
that he had extended financial assistance to the petitioner for running his
liquor business and that, in discharge of the said liability, the petitioner
had issued cheque No. 266309 dated 15.02.2024 for an amount of Rs.
65,68,785/-, which, upon presentation, was dishonoured with the
endorsement “Payment Stopped by Drawer”. On the basis thereof, the
learned trial Magistrate, vide order dated 27.06.2024, took cognizance and
issued process against the petitioner.
4. Assailing the aforesaid proceedings, the petitioner contends that no such
financial arrangement or liability ever existed between the parties and that
he had never issued the cheque in question towards discharge of any
legally enforceable debt or liability. It is his specific case that the cheque
in question forms part of the cheque book which had been reported
misplaced and payment whereof had already been stopped in December,
2022, much prior to the alleged date of issuance of the cheque.
5. It is further contended that after learning about the alleged misuse of the
cheque, he approached the police authorities seeking registration of an
FIR. The petitioner further relies upon an affidavit allegedly executed by
the respondent showing his association with M/s Glare Beverages and also
refers to another complaint instituted by M/s Glare Glass Traders in
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respect of another cheque from the same cheque book to contend that the
cheques have been misused. On these premises, it is urged that the
complaint does not disclose commission of any offence under Section 138
of the Negotiable Instruments Act and that continuance of the criminal
proceedings would amount to an abuse of the process of Court.
6. Upon notice, the respondent has filed objections resisting the petition. It is
submitted that the cheque in question was voluntarily issued by the
petitioner in discharge of a legally enforceable liability arising out of
financial assistance extended by the respondent. According to the
respondent, a sum of Rs. 65,68,785/- had been transferred to the petitioner
through banking channels, whereafter the petitioner issued the cheque in
question towards repayment. It is contended that upon dishonour of the
cheque, statutory notice was served upon the petitioner and, after his
failure to make payment within the prescribed period, the complaint under
Sections 138 and 142 of the Negotiable Instruments Act came to be
instituted in accordance with law.
7. The respondent further submits that the petitioner has neither denied his
signatures on the cheque nor disputed receipt of the amount allegedly
advanced by the respondent. It is submitted that the defence sought to be
projected by the petitioner regarding prior stop-payment instructions and
alleged misuse of the cheque raises disputed questions of fact, which can
only be adjudicated during trial after evidence is led by the parties.
8. According to the respondent, mere issuance of stop-payment instructions
does not by itself exonerate the drawer from liability under Section 138 of
the Negotiable Instruments Act, particularly when the statutory
presumption under Section 139 operates in favour of the holder of the
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cheque. It is also submitted that the petitioner has adopted the plea of
misplaced cheques only to evade his liability and that such defence cannot
be examined in proceedings under Section 528 BNSS.
9. The respondent has also pointed out that another petition preferred by the
petitioner challenging proceedings arising out of a separate complaint filed
by M/s Glare Glass Traders in respect of another cheque has already been
dismissed by this Court, and contends that the present petition is similarly
devoid of merit. It is, accordingly, prayed that the petition be dismissed
and the interim protection granted to the petitioner be vacated.
Legal Analysis:-
10. Heard learned counsel for the parties and perused the record.
11. The principal contention advanced on behalf of the petitioner is that the
cheque in question had been misplaced in the year 2022 and that he had
already issued instructions to his banker on 13.12.2022 for stoppage of
payment. It has further been contended that the respondent has misused
the said cheque and that there existed no legally enforceable debt or
liability between the parties. On the strength of these submissions, it has
been argued that continuance of the complaint under Section 138 of the
Negotiable Instruments Act amounts to an abuse of the process of law
warranting exercise of the inherent jurisdiction of this Court under Section
528 of the BNSS.
12. A perusal of the complaint, however, reveals that the respondent has
categorically pleaded that financial assistance had been extended to the
petitioner and that in discharge of the liability arising therefrom, the
petitioner issued cheque No. 266309 dated 15.02.2024 for an amount of Rs.
65,68,785/-. It has further been pleaded that the cheque, upon presentation,
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was dishonoured with the endorsement ‘Payment Stopped by Drawer’. A
statutory notice as envisaged under Section 138 of the Negotiable
Instruments Act was served upon the petitioner and that despite receipt
thereof, the petitioner failed to liquidate the liability within the prescribed
period, thereby compelling the respondent to institute the complaint. Upon
considering the averments made in the complaint, the preliminary statement
of the complainant and the material placed on record, the learned Sub Judge
(Special Mobile Magistrate), Rajouri, found a prima facie case to exist and
accordingly issued process against the petitioner.
13. It is well settled that at the stage of taking cognizance and issuance of
process, the learned Magistrate is only required to examine whether the
complaint and the material accompanying it disclose the commission of a
prima facie offence. At that stage, the Court is not expected to
meticulously evaluate the probable defence of the accused or adjudicate
upon disputed questions of fact, which necessarily require appreciation of
evidence during trial.
14. Since one of the principal grounds urged by the petitioner is the absence of
any legally enforceable debt or liability, it becomes necessary to advert
Section 139 of the Negotiable Instruments Act, which provides 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.”
15. A plain reading of the aforesaid provision makes it evident that once the
foundational facts constituting an offence under Section 138 are pleaded
and prima facie established, the statutory presumption operates in favour of
the holder of the cheque that it was received in discharge, in whole or in
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part, of a legally enforceable debt or other liability. Although the said
presumption is rebuttable, the burden to rebut the same lies upon the
accused by raising an appropriate defence before the learned trial Court in
accordance with law.
16. The pleas projected by the petitioner, that the cheque had been misplaced,
that stop-payment instructions had already been issued to the bank, that the
cheque has been misused by the respondent and that no legally enforceable
debt or liability existed, constitute his defence to the complaint. Whether the
cheque had in fact been lost, whether it was voluntarily issued by the
petitioner, whether it was issued in discharge of a legally enforceable debt
or liability, and whether the statutory presumptions available under the
Negotiable Instruments Act stand rebutted, are all disputed questions of fact
which cannot be conclusively determined in proceedings under Section 528
of the BNSS. These issues necessarily require evidence to be led by the
parties before the learned trial Court.
17. The Hon’ble Supreme Court, in “Indian Bank Association & Ors. v.
Union of India &Anr.“, (2014) 5 SCC 590, while examining the scheme
and procedure governing prosecutions under Section 138 of the Negotiable
Instruments Act, particularly the stage of taking cognizance and the conduct
of proceedings, it has held as under:
“16. ….We make it clear that if the proviso (a), (b) & (c) to
Section 138 of the Act are shown to have been complied with,
technically the commission of the offence stands completed
and it is for the accused to show that no offence could have
been committed by him for specific reasons and defences.”
18. The principle enunciated by the Hon’ble Supreme Court squarely governs the
controversy involved in the present case. The complaint, on its face, discloses
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compliance with the statutory requirements contemplated under Section 138
of the Negotiable Instruments Act and the learned Magistrate, upon
considering the averments made therein along with the preliminary evidence
adduced by the complainant, has rightly recorded a prima facie satisfaction
for issuance of process against the petitioner. Significantly, the petitioner
does not dispute his signatures on the cheque in question. Once the execution
of the cheque is not denied, the statutory presumption under Section 139 of
the Negotiable Instruments Act comes into operation in favour of the holder
of the cheque. The said presumption is rebuttable, however, the burden to
rebut the same lies upon the petitioner by leading appropriate evidence before
the learned trial Court. The pleas sought to be urged by the petitioner,
namely, that the cheque had been misplaced, that stop-payment instructions
had already been issued, that the cheque has been misused and that no legally
enforceable debt or liability existed, are essentially matters of defence, which
cannot be adjudicated in exercise of the inherent jurisdiction of this Court
under Section 528 of the BNSS.
19. The inherent jurisdiction preserved under Section 528 of the BNSS is
intended to prevent abuse of the process of any Court or otherwise to secure
the ends of justice. However, such jurisdiction cannot be invoked to
undertake an appreciation of disputed facts or to evaluate the defence sought
to be projected by an accused at a stage when the trial has not yet
commenced. Acceptance of the petitioner’s contentions at this stage would
virtually amount to conducting a mini trial, which is beyond the permissible
scope of interference while exercising inherent jurisdiction.
20. It would also be pertinent to note that in a case titled„Sanjay Gupta v. M/s
Glare Glass Traders’, CRM(M) No. 740/2024,decided on 01.03.2025, this
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Court was dealing with a similarpetition filed by the same petitioner,
wherein substantially similar pleas were raised, namely that the cheque in
question had been lost, that instructions for stop payment had already been
issued to the bank and that the cheque had not been issued in discharge of
any legally enforceable debt or liability. While dealing with the aforesaid
contentions, this Court observed as under:
“8. The petitioner may be having some defence as urged by
the petitioner and noted by this Court above but the same
cannot be considered at the very initial stage and the
petitioner is well within his right to demonstrate before the
learned Trial Court during the course of trial that he had lost
the cheque and had not issued the same in order to discharge
any legal enforceable debt or liability.
9. In view of this, the present petition is disposed of by
permitting the petitioner to raise all the pleas raised in the
present petition before the learned Munsiff/JMIC during
course of trial.”
21. The factual matrix of the present case is substantially similar. In the present
case also, the petitioner seeks quashment of the complaint by raising the plea
that the cheque had been misplaced, that stop-payment instructions had been
issued much prior to its presentation and that no legally enforceable debt or
liability existed. As already noticed hereinabove, these are essentially matters
of defence which require adjudication upon appreciation of evidence before
the learned trial Court. The ratio laid down by this Court in the aforesaid
decision, therefore, squarely applies to the facts of the present case and
fortifies the conclusion that no case is made out for exercise of the inherent
jurisdiction under Section 528 of the BNSS for quashing the complaint or the
order taking cognizance.
Conclusion:-
22. From the material placed before the learned Magistrate, it cannot be said that
the essential ingredients of the offence punishable under Section 138 of the
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Negotiable Instruments Act were absent or that the complaint did not disclose
a prima facie case. The learned Magistrate, upon considering the averments
made in the complaint and the preliminary evidence adduced by the
complainant, has rightly arrived at a prima facie satisfaction for issuance of
process. This Court finds no jurisdictional error, perversity or patent illegality
in the order dated 27.06.2024 warranting interference in exercise of powers
under Section 528 of the BNSS.
23. Needless to observe, all the pleas sought to be raised by the petitioner in
the present petition shall remain available to him before the learned trial
Court. The learned trial Court shall consider and decide the same on the
basis of the evidence led by the parties and strictly in accordance with law,
without being influenced by any observation made herein.
24. In view of the foregoing discussion, the present petition, being devoid of
merit, is accordingly dismissedalongwith all connected applications.
Interim direction(s), if any, shall stand vacated. As a necessary corollary,
order dated 27.06.2024 passed by Court of Learned Sub Judge, Special
Mobile Magistrate Rajouri is upheld and the Learned Trial Court shall
proceed in the compliant titled Vipan Kumar Mehta v. Sanjay Gupta,
bearing File No. 84/2024, expeditiously in accordance with law without
being influenced by any observations made by this Court while deciding the
instant petition.
(Wasim Sadiq Nargal)
Judge
Jammu:
03.08.2026
Vijay
Whether Judgment is Speaking? Yes
Whether Judgment is Reportable? Yes/No
