Full Text
Translation output
HIGH COURT OF DELHI
Date ofDecision: January 13, 201§
Date ofDecision: January 13, 201§
CRL.M.C. 240/2012 &Crl.M.A.869/2012
AMAN KUMAR HARJAI
Through: Mr. Maninder Singh, Ms. Ekta Vats, Mr. Jagmeet Randhawa &
Mr. Prateek Sisodia, Advocates
AMAN KUMAR HARJAI
Through: Mr. Maninder Singh, Ms. Ekta Vats, Mr. Jagmeet Randhawa &
Mr. Prateek Sisodia, Advocates
VERSUS
STATE & ANR.
Through;
Respondents Ms. Nishi Jain, Additional Public
Prosecutor for State
Through;
Respondents Ms. Nishi Jain, Additional Public
Prosecutor for State
CORAM"
HON'BLE MR. JUSTICE SUNIL GAUR.niDGMENT (ORAL)
Quashing of criminal complaint CC No. 121/01/2006, under
Section 138 of rte Negotiable Instruments Act, 1881 titled as Vishesh^
InfotecnicsLtd Vs. AmanHarjai & ors. andthesummoningorderof18 February, 2006 is sought on merits inthis petition.
At the hearing, it was submitted by learned counsel for petitioner tot petitioner is neither proprietor, director, managing partner nor employee or authorized signatory ofthe accused-company and has never dealt with the accused-company in any manner. Learned counsel for petitionersubmittedthatthereis no avermentagainstthepetitionerm the complaint in question and therefore, summoning order of18"' February, 2006 is unwarranted and deserves to be quashed. It is submitted by
Page 1 Crl.M.C.No.240/2012 2015:DHC:10590 learned counsel for petitioner that Notiee under Section 251 of the
CrPChasnotyetbeenframed inthis caseandmatteris now commgup for hearing on 13«' April, 2015 before the trial court and petmoner be permittedto appearthroughcounsel inthis case.
Since petitioner has an alternate and efficacious remedy available to him to u^e the pleas taken herein before trial court at the time of framing of Notice under Section 251 of Cr.P.C., therefore, diis Court finds that inherent powers ofthis Court under Section482 ofthe r • arenotrequiredtobeinvokedto quashtheproceedmgsarismgoutofthe complaint in question. It is beingso said inview ofdictam ofthe Apex
Court in Bhushm Kumar &Anr. Vs. State (NCTofDelhi) &Anr.
2012 SC 1747, which persuades this Court not to exercise inheren jurisdiction under Section 482 Cr.P.C. to entertain this petition. The pertinentobservations ofApex CourtinBhushanKumar (Supra), are as under;-
-n It is irAerent in Section 251 of the Code that
„henan accusedappears before the trial Co^tpursuant to summons issued under Section 204 of the Code ma summons trial case, it is the bounden duly ofthe trial Co to carefully go through the allegations made mthe charg sheet or complaint and consider the evidence to cotne to a conclusion whether or not, commission of a^ disclosed and if the answer is in the cffirmattve the
Magistrate shall explain the substance ofthe accusation to the accusation to theaccusedandaskhimwhetherhepleads guiltyotherwise, he is boundtodischarge theaccusedasper
Section 239 ofthe Code." Crl. M.C.No.240/2012
U
Further, on this aspect, the dictum ofthe Apex Court in Krishan
Kumar Varicn-v. ShareShoppe (2010) 12 SCC is asundcr:-
"4 In our opinion, in such cases where the accused or any otherperson raises an objection that the trial court has m>jurisdiction in the matter, the saidperson shouldfile an application before the trial court making this averment an giving the relevantfacts. Whether acourthasjurisdiction to try/entertain acase will, at least in part, depend upon the facts of the case. Hence, instead ofrushing to the higher court against the summoning order, the person concerned should approach the trial court with asuitable application for thispurpose andthe trialcourtshouldafterhearingboth the sides and recording evidence, if necessary, decide the question ofjurisdiction before proceedingfurther with the case.
2^ 5For the reasons stated hereinabove, the impugned
Quashing of criminal complaint CC No. 121/01/2006, under
Section 138 of rte Negotiable Instruments Act, 1881 titled as Vishesh^
InfotecnicsLtd Vs. AmanHarjai & ors. andthesummoningorderof18 February, 2006 is sought on merits inthis petition.
At the hearing, it was submitted by learned counsel for petitioner tot petitioner is neither proprietor, director, managing partner nor employee or authorized signatory ofthe accused-company and has never dealt with the accused-company in any manner. Learned counsel for petitionersubmittedthatthereis no avermentagainstthepetitionerm the complaint in question and therefore, summoning order of18"' February, 2006 is unwarranted and deserves to be quashed. It is submitted by
Page 1 Crl.M.C.No.240/2012 2015:DHC:10590 learned counsel for petitioner that Notiee under Section 251 of the
CrPChasnotyetbeenframed inthis caseandmatteris now commgup for hearing on 13«' April, 2015 before the trial court and petmoner be permittedto appearthroughcounsel inthis case.
Since petitioner has an alternate and efficacious remedy available to him to u^e the pleas taken herein before trial court at the time of framing of Notice under Section 251 of Cr.P.C., therefore, diis Court finds that inherent powers ofthis Court under Section482 ofthe r • arenotrequiredtobeinvokedto quashtheproceedmgsarismgoutofthe complaint in question. It is beingso said inview ofdictam ofthe Apex
Court in Bhushm Kumar &Anr. Vs. State (NCTofDelhi) &Anr.
2012 SC 1747, which persuades this Court not to exercise inheren jurisdiction under Section 482 Cr.P.C. to entertain this petition. The pertinentobservations ofApex CourtinBhushanKumar (Supra), are as under;-
-n It is irAerent in Section 251 of the Code that
„henan accusedappears before the trial Co^tpursuant to summons issued under Section 204 of the Code ma summons trial case, it is the bounden duly ofthe trial Co to carefully go through the allegations made mthe charg sheet or complaint and consider the evidence to cotne to a conclusion whether or not, commission of a^ disclosed and if the answer is in the cffirmattve the
Magistrate shall explain the substance ofthe accusation to the accusation to theaccusedandaskhimwhetherhepleads guiltyotherwise, he is boundtodischarge theaccusedasper
Section 239 ofthe Code." Crl. M.C.No.240/2012
U
Further, on this aspect, the dictum ofthe Apex Court in Krishan
Kumar Varicn-v. ShareShoppe (2010) 12 SCC is asundcr:-
"4 In our opinion, in such cases where the accused or any otherperson raises an objection that the trial court has m>jurisdiction in the matter, the saidperson shouldfile an application before the trial court making this averment an giving the relevantfacts. Whether acourthasjurisdiction to try/entertain acase will, at least in part, depend upon the facts of the case. Hence, instead ofrushing to the higher court against the summoning order, the person concerned should approach the trial court with asuitable application for thispurpose andthe trialcourtshouldafterhearingboth the sides and recording evidence, if necessary, decide the question ofjurisdiction before proceedingfurther with the case.
2^ 5For the reasons stated hereinabove, the impugned
JUDGMENT
and order is set aside and the appeal is allowed
The appellant, ifso advised, may approach the trml court with asuitable application in this connection and, ifsuch an application isfiled, the trial court shall after hearing both the sides and after recording evidence on the question on jurisdiction, shall decide the question ofjurisdiction before furtherproceedingwith the trial."
In view of authoritative pronouncement of the Apex Court m
Bhushan Kumar &Krishan Kumar (supra,) as referred to heremabove, inherent powers of this Court under Section 482 ofthe Cr.P.C. are not exercised at this stage and so, petitioner is relegated to urge the pleas takenherem beforethetrial courtatthehearingonthe pointofframmg of
Notice under Section 251 ofCr,P.C. and ifit is so done, then trial court shalldealwiththepleasraisedhereinbypassingaspeakingandreasoned order. Atthe stage offraming of Notice under Section 251 ofCr.P.C., rtal court is not expected to fimction like a post office and to mechanically frame Notice, but is rather boundby law to apply rts mmd to fmd out whetherprimafacie case is made out against the accused or not. Similar view has been already taken by acoordinate Bench ofthis
CourtinS.K. Bhalla V. State andOthers 180(2011)DLT219.
Needless to say, if the trial court finds that no case is made out againstpetitioner,thendecisionoftheApexCourt'sinAdalatPrasad Vs
RooplalJindal and Ors. (2004) 7SCC 338 will not stand inthe way of trial court to drop the proceedings against petitioner and if trial court chooses to proceed against petitioner, then petitioner will have the remedy as available in the law. It is so said because dropping of proceedings atNoticestagecamiot possiblybeequatedwith recalling of summoning order.
Purely as an interim measure, till the arguments on the point of framing ofNotice under Section 251 ofCr.P.C. are concluded, personal appearance of petitioner be not insisted upon by the trial court upon petitionerfiling anapplicationunderSection205 ofCr.P.C.alongwithhis affidavit with the following undertaking; - a thattheproceedings ofthe caseshallbe regularlyconductedby counsel (whose name shall be disclosed in application), who shall appear on behalfofpetitioner on every hearing anddoes not seek adjournment; b. thatpetitioner shall not dispute their identity as accused in the
CCISG • c. that the petitioner shall appear in person in case they are directed to do so infuture; and d. thatpetitionershallnotraise the question ofprejudiceinfuture.
It is made clear that ifpetitioner delays the proceedings before the trial court, then petitioner will not have the benefit ofexemption from personal appearance extendedby this Court.
This petition and the application are accordingly disposed of in aforesaid terms while refiraining to comment upon merits, lest it may prejudice either side at the hearing on the framing of Notice under
Section 251 ofCr.P.C.
Dasti. -7 (SUNIL GAUR)
JUDGE
JANUARY 13, 2015^
The appellant, ifso advised, may approach the trml court with asuitable application in this connection and, ifsuch an application isfiled, the trial court shall after hearing both the sides and after recording evidence on the question on jurisdiction, shall decide the question ofjurisdiction before furtherproceedingwith the trial."
In view of authoritative pronouncement of the Apex Court m
Bhushan Kumar &Krishan Kumar (supra,) as referred to heremabove, inherent powers of this Court under Section 482 ofthe Cr.P.C. are not exercised at this stage and so, petitioner is relegated to urge the pleas takenherem beforethetrial courtatthehearingonthe pointofframmg of
Notice under Section 251 ofCr,P.C. and ifit is so done, then trial court shalldealwiththepleasraisedhereinbypassingaspeakingandreasoned order. Atthe stage offraming of Notice under Section 251 ofCr.P.C., rtal court is not expected to fimction like a post office and to mechanically frame Notice, but is rather boundby law to apply rts mmd to fmd out whetherprimafacie case is made out against the accused or not. Similar view has been already taken by acoordinate Bench ofthis
CourtinS.K. Bhalla V. State andOthers 180(2011)DLT219.
Needless to say, if the trial court finds that no case is made out againstpetitioner,thendecisionoftheApexCourt'sinAdalatPrasad Vs
RooplalJindal and Ors. (2004) 7SCC 338 will not stand inthe way of trial court to drop the proceedings against petitioner and if trial court chooses to proceed against petitioner, then petitioner will have the remedy as available in the law. It is so said because dropping of proceedings atNoticestagecamiot possiblybeequatedwith recalling of summoning order.
Purely as an interim measure, till the arguments on the point of framing ofNotice under Section 251 ofCr.P.C. are concluded, personal appearance of petitioner be not insisted upon by the trial court upon petitionerfiling anapplicationunderSection205 ofCr.P.C.alongwithhis affidavit with the following undertaking; - a thattheproceedings ofthe caseshallbe regularlyconductedby counsel (whose name shall be disclosed in application), who shall appear on behalfofpetitioner on every hearing anddoes not seek adjournment; b. thatpetitioner shall not dispute their identity as accused in the
CCISG • c. that the petitioner shall appear in person in case they are directed to do so infuture; and d. thatpetitionershallnotraise the question ofprejudiceinfuture.
It is made clear that ifpetitioner delays the proceedings before the trial court, then petitioner will not have the benefit ofexemption from personal appearance extendedby this Court.
This petition and the application are accordingly disposed of in aforesaid terms while refiraining to comment upon merits, lest it may prejudice either side at the hearing on the framing of Notice under
Section 251 ofCr.P.C.
Dasti. -7 (SUNIL GAUR)
JUDGE
JANUARY 13, 2015^