Mohammad Iqbal Naikoo @APPELLANT@Hash Aamir Majeed Mir

By the medium of this petition, filed under Section 561_A Cr. PC, the petitioner has sought the indulgence of this Court for quashing the complaint bearing File No. 45/ filed before the Court of learned Judicial Magistrate 1st Class, Baramulla, titled Aamir Majeed Mir v. Mohammad Iqbal Naikoo.

A brief account of facts, in which the petition is stated to have been filed is:

(i) The petitioner is a businessman/distributor of various goods and articles, spices, juices etc. The respondent was doing his business with the petitioner from last many years and was supplying aforesaid food products to the petitioner for further distribution to the shopkeepers of District Baramulla and the said business was only source of income and livelihood for the petitioner. The petitioner was sole distributor of the products like food items engaged by the respondent and the respondent has earned a huge profit out of the business, which was solely run by the petitioner, by means of huge manual labour.

(ii) The respondent suddenly stopped the supply of products and intending to resign his contract with the petitioner and had engaged the services of other persons for the distribution of the same for which the petitioner has instituted a suit against the respondent before the Court of Sub Judge, Baramulla. The said court after hearing counsel for the petitioner was pleased to pass a restrain order against the respondent from causing any sort of interference in the management and running of business to the petitioner by the respondent. The respondent has not only stopped the supply of the foods/products, but is refusing the pick-out the expired items which costs approximately Rs. 4.00 lacs to Rs. 5.00 lacs. The inaction on part of the respondent is causing huge loss to the business of the petitioner, which could not be compensated by any means whatsoever. The petitioner has approached the respondent with a request resuming the supply of produces and pick-up the expired products/goods, but the respondents categorically refused the same.

(iii) After receiving the order of the learned trial Court, the respondent had filed a complaint under Section 138 of N. I. Act, wherein he has submitted before the learned Judicial Magistrate 1st Class at Baramulla that the petitioner has issued a cheque in favour of the respondent which after producing before the Drawee Bank for encashment, returned back vide Memo with "not Sufficient Funds".

The cheque produced before the Drawee Bank does not belong to the petitioner, on this ground, the complaint is not maintainable in the eyes of law and deserves to be quashed. The cheque which the respondent produced before the Drawee Bank is of the account of CC314 is in the name of Mr. Abdul Rashid, who is running the account, but the respondent has served a legal notice to the petitioner which the petitioner has not received and petitioner came to know when the notice was served by the learned Judicial Magistrate 1st class at Baramulla.

(iv) The respondent has not followed the procedure as laid down in N. I. Act. The respondent has filed the impugned complaint just to harass the petitioner and wants to distribute the items/products to another person and did not return the expired goods which is worth of Rs 4.00 lacs to Rs. 5.00 lacs.

(v) The respondent is making breach of the agreement and wants to engage another person for distribution of goods, for which the petitioner has filed the suit before the sub Judge, Baramulla. The cheque which has not been encashed does not belong to the petitioner.

Heard learned counsel for the petitioner and perused the material on record.

It has been noted herein above that the petitioner is making an attempt to make the Court to believe that complaint filed before the learned Magistrate, is unfounded in the light of his counter version. So in essence it is being canvassed that the Court should make the assertions made in the petition, the foundation for quashing the proceedings in my opinion. Same is not a scope of Section 561_A Cr. PC. This Court cannot return the findings on the questions of fact as put forth by the petitioner. The complaint before the learned Magistrate requires a full dressed trial under law. To have finding of the Court on such points of fact, it requires evidence to be led by the parties and there upon its consequent appreciation.

Hon'ble Apex Court in State of Orissa v. Suraj Kumar Sahoo, reported in (2005) 13 SCC 540, has sounded a note of caution regarding the power of High Court to be exercised in terms of Section 561-A Cr. PC, corresponding to Section 482 of Central Code. Their lordships enunciated that the High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, being of magnitude and cannot be seen in their true perspective without sufficient material before the Court. While exercising inherent jurisdiction as observed by their lordships, it is not permissible for the Court to act as if it was a trial Court. It would be none of the duties of the High Court to appreciate the evidence to conclude whether the material produced is sufficient or not for holding the accused guilty.

For this, I am of the opinion that the complaint presented against the petitioner cannot be quashed. It would be for petitioner to appear before the said Court and to raise whatever grounds he has about his defence in the matter. The trial Magistrate would then only be able to examine its legality or permissibility.

In view of the preceding analysis, the petitioner of the petitioner merits dismissal and is, accordingly, dismissed.

Copy of this order be forwarded to the Court of learned Judicial Magistrate Ist Class, Baramulla.