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CRL.M.C. 5266/2013 & Crl. M.A. Nos. 19018-19/2013
D GUNASEKAR & ANR. ..... Petitioners
Through: Mr. Sanjay Ghose & Mr. Mohd.
Farookh, Advocates
Quashing of complaint No. 47/1, under Section 138 of The
Negotiable Instruments Act, 1881 and trial court’s order of 28th July, 2012 (Annexure -7) is sought in this petition.
At the hearing, learned counsel for petitioners had submitted that petitioners are employee of the accused-company and they not responsible for day to day functioning of the accused-company nor they are signatories of the cheques in question and therefore, statutory notice served upon petitioners does not fulfill requirements of Section 141 of the aforesaid Act and is liable to be quashed. Learned counsel for petitioners has drawn attention of this Court to para-10 of the impugned complaint to assert that petitioners are accused no. 8 & 9 in the complaint in question and they are employees of the accused-company and therefore, ingredients of Section 138 of The Negotiable Instruments Act, 1881 are
2013:DHC:6504 Crl. M.C. No. 5266/2013 Page 2 not attracted. In support of his averments, learned counsel for petitioners relied upon decisions in Mrs. Aparna A. Shah Vs. Sneh Developers Ltd. & anr. 2013 (8) SCC 71; A.K. Singhania Vs. Gujrat State Ferilizers
Company Ltd. & anr. 2013 (12) SCALE 673.
At this stage, learned counsel for petitioner submits that the matter is now listed before the trial court on 4th January, 2014 and Notice under Section 251 of Cr.P.C. has not yet been framed in the complaint in question.
After hearing learned counsel for petitioners and upon perusal of impugned order and the complaint in question, this Court finds that inherent powers of this Court under Section 482 of the Cr.P.C. are not required to be invoked to quash the proceedings arising out of the complaint in question. It is being so said in view of dictum of the Apex
Court in Bhushan Kumar & Anr. Vs. State (NCT of Delhi) & Anr. AIR
2012 SC 1747, which persuades this Court not to exercise inherent jurisdiction under Section 482 Cr.P.C. to entertain this petition. The pertinent observations of Apex Court in Bhushan Kumar (Supra), are as under:-
"17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge- sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the
Magistrate shall explain the substance of the accusation to
Crl. M.C. No. 5266/2013 Page 3 the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per
Section 239 of the Code." Further, on this aspect, the dictum of the Apex Court in Krishan
Kumar Variar v. Share Shoppe (2010) 12 SCC is as under:-
"4. In our opinion, in such cases where the accused or any other person raises an objection that the trial court has no jurisdiction in the matter, the said person should file an application before the trial court making this averment and giving the relevant facts. Whether a court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, instead of rushing to the higher court against the summoning order, the person concerned should approach the trial court with a suitable application for this purpose and the trial court should after hearing both the sides and recording evidence, if necessary, decide the question of jurisdiction before proceeding further with the case.
JUDGMENT
5. For the reasons stated hereinabove, the impugned judgment and order is set aside and the appeal is allowed. The appellant, if so advised, may approach the trial court with a suitable application in this connection and, if such an application is filed, the trial court shall after hearing both the sides and after recording evidence on the question on jurisdiction, shall decide the question of jurisdiction before further proceeding with the trial." In view of authoritative pronouncement of the Apex Court in Bhushan Kumar & Krishan Kumar (supra) as referred to hereinabove and in view of the ground reality that this Court is being clogged by filing Crl. M.C. No. 5266/2013 Page 4 of such petitions, it is the need of the hour to direct petitioners to approach the trial court, so that such petitioners instead of straightway rushing to this Court, ought to seek dropping of the proceedings by the trial court to ensure that summary trial in such like matters does not get unnecessarily delayed. Petitioners are accordingly relegated to trial court to urge the pleas taken herein before trial court at the hearing on framing of Notice under Section 251 of Cr.P.C., and if it is so done, then trial court shall deal with the pleas raised herein by passing a speaking and reasoned order. At the stage of framing of Notice under Section 251 of the Cr.P.C., trial court is not expected to function like a post office and to mechanically frame Notice, but is rather bound by law to apply its mind to find out whether prima facie case is made out against the accused or not. It is being so said in view of observations of a Coordinate Bench of this Court in S.K. Bhalla Vs. State & ors. (2011) 180 DLT 219 which reads as under:- ‘’Therefore, it is inherent in Section 251 of the Code of Criminal Procedure that when an accused appears before the Trial Court pursuant to summons issued under Section 204 CrPC in a summons trial case, it is bounden duty of the trial court to carefully go through the allegations made in the charge sheet/ complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and Crl. M.C. No. 5266/2013 Page 5 ask him whether he pleads guilty otherwise, he is bound to discharge the accused.’ Needless to say, if trial court finds that no case is made out against petitioners, then Apex Court’s decision in Adalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 SCC 338 will not stand in the way of trial court to drop proceedings against petitioners. It is so said because dropping of proceedings at Notice stage cannot possibly be equated with recalling of summoning order. Purely as an interim measure, till trial court decides to frame or not to frame Notice under Section 251 of Cr.P.C. against petitioners, personal appearance of petitioners be not insisted upon by trial court provided petitioners are represented by counsel, who does not seek adjournment. If trial court chooses to proceed against petitioners, then petitioners will have the remedy as available in the law. This petition and applications are accordingly disposed of in aforesaid terms while refraining to comment upon merits, lest it may prejudice either side at the hearing on the framing of Notice under Section 251 of Cr.P.C.
JUDGE DECEMBER 17, 2013 r