The proceedings in any given case are abuse of process of law or not depends upon the facts and circumstances of each case: The High Court of Jammu & Kashmir and Ladakh

The court can definitely interfere and quash the proceedings taken up in a particular case if it is satisfied that the same is totally unjust and will be an abuse of the process of law if the proceedings are allowed to continue. There is no dispute with the proposition of law that the Court in the exercise of its inherent powers will not lightly interfere where the Court may have to analyze the factual aspects of the case in detail and is required to deal with the defence that may or can be taken otherwise by the party in the proceedings. In the Hon’ble High Court of Jammu & Kashmir and Ladakh led through the single bench by Justice Puneet Gupta in the matters of K.N Singh v. Manjeet Singh [CRMC/210/2014].

The facts of the case are that the petitioner claims to be the proprietor of M/s New Jhelum Construction Company and is engaged in the construction activities. The precise cause of the petitioner is that a cheque bearing No.093015 dated 12.04.2013 for an amount of Rs.7,40,000/- drawn on Jammu and Kashmir Bank Ltd., Town Hall Jammu, from Account No.1279 maintained in the name of the firm of the petitioner was issued to the respondent. The further case of the petitioner is that later on the request of the respondent two cheques of Rs.3,70,000 each were issued to the respondent in lieu of earlier cheque issued for Rs.7,40,000/-. These two cheques were drawn on the account maintained by the petitioner in the J&K Grameen Bank Samba. Both the aforesaid cheques were drawn by the respondent and the amount was transferred in the account of the respondent on 11.05.2013. The cheque earlier issued for Rs.7,40,000/- was returned by the respondent, but later on the said cheque was stolen by the respondent from the office of the petitioner after he collected the amount of two cheques and withdrew the same on 11.05.2013.

Mr Rahul Pant, appearing on behalf of the petitioner, has submitted that there was no liability incurred by the petitioner towards the respondent which could result in the issuance of the

Also, it was submitted from the petitioner’s side that there was no liability incurred by the petitioner towards the respondent which could result in the issuance of the two cheques in question which were encashed and utilized by the respondent. The two cheques were in lieu of the earlier cheque issued of the same amount of Rs.7,40,000/- and nothing more. Further reiterating the averments contained in the petition through argument it is submitted that it cannot be mere coincidence that the two cheques issued by the petitioner will be of the same amount regarding which the earlier cheque issued to discharge the liabilities incurred on behalf of the petitioner in the contract allotted to the petitioner company.

The respondent had argued that the present petition is not maintainable as the grounds pleaded in the same do not make out a prima facie case for abashment of the complaint. It is submitted that the arguments raised on behalf of the petitioner are in factual context and cannot be determined in the present petition. The presumption in law is that if the cheque is issued by the party the same is presumed to be issued in the discharge of some liability and the author of the cheque is required to fulfil his obligation and see that the cheque issued gets enchased in favour of the party in whose favour the cheque is issued.

The High Court of Jammu and Kashmir concluded “In the facts and circumstances of the case, this Court does not find any merit in the petition. The petition is dismissed. The petitioner is at liberty to take all the pleas/defence before the trial court that may be available to him under law.”

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Judgement reviewed by Pranav Vyas.

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