Full Text
M.A. No. 774/2012
SANJAY BHAI GOPANI PROP OF SATYAM FASfflON Petitioner
Through: Ms. Safia Gupta, Advocate
Through:
Respondents Ms. Nishi Jain, Additional Public
Prosecutor for respondent No.l- State Mr. V.K. Sharma, Advocate for respondent No.2
(ii) CRL.M.C. 207/2012 &Crl.
M.A. No. 776/2012
Through: Ms. Nishi Jain, Additional Public Prosecutor for respondent No.1-
State Mr.' y.K. Sharma, Advocate for (ii) CRL.M.C. 208/2012 & Crl.
M.A. No.778/2013
CrlMC. No.206/2012 CrlM.C. No.207/2012 CrlM.C. No.208/2012
Page 1 2013:DHC:7772
Through: Ms. Nishi Jain, Additional Public Prosecutor for respondent No.l-
State Mr. V.K. Sharma, Advocate for
16.12.2013 In the above captioned three petitions, quashing of three criminal complaints being CC No. 2227/1/09, CC No. 2228/1/09 & 2229/1/09, all titled Jirig Cheng India Vs. SanjayBhai Gopani, under Sections 138 of
The Negotiable Instruments Act, 1881is sought while raising question of jurisdiction as well as on merits.
Since the quashing of these three complaints is sought on identical grounds, therefore, with the consent of learned counsel forpetitioner, the above-captioned three petitions were heard together and by this common order, they are being disposed of.
At the hearing, learned counsel for petitioner submitted that the cheques in question were issued, presented and dishonoured at Surat and therefore, trial court has no jurisdiction to entertain these petitions and that the statutory Notice was not served upon petitioner due to incorrect and wrong address. It is further submitted by learned counsel for
CrlM.C. No. 206/2012 ~ Page 2 CrlM.C. No. 207/2012
CrLM.C. No. 208/2012 C) petitioner that the cheques in question were not issued against any existing debt or liability and so, it does not fall within the purview of provisions of Section 138 of The Negotiable Instruments Act,1881 and therefore, impugned three complaints are not maintainable and deserve to be quashed.
After hearing learned counsel for petitioner and upon perusal of material on record, 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 complaints in question. It is being so said in view of dictum of the Apex Court in Bhushan Kumar & Anr. Vs.
State (NCT ofDelhi) & 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 accusedappears before the trial Courtpursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty ofthe 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 ofthe accusation to theaccusation to the accused andaskhim whether hepleads guilty otherwise, heisbound todischarge the accusedasper
Section 239 ofthe Code." Crl.M.C. No. 206/2012 Page 3
CrlM.C. No. 208/2012 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 nojurisdiction in the matter, the saidperson shouldfile an application before the trial court making this averment and giving the relevantfacts. Whether a court hasjurisdiction to try/entertain a case will, at least inpart, 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 courtwith a suitable application for this purpose and the trial courtshouldafterhearing both the sides and recording evidence, if necessary, decide the question ofjurisdiction beforeproceeding further with the case.
ORDER
5. For the reasons stated hereinahove, the impugned judgmentand 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, ifsuch an application isfiled, the trial courtshall after hearing both the sides and after recording evidence on the question on jurisdiction, shall decide the question ofjurisdiction before furtherproceeding with the trial." In view of authoritative pronouncement of the Apex Court in Bhushan Kumar & Krishan Kumar (supra) as referred to hereinahove and in view ofthe ground reality that this Court is being clogged by filing ofsuch petitions, itis the need ofthe hour to direct petitioner to approach the trial court, so that such petitioners instead of straightway rushing to CrlM.C. No. 206/2012 ^ ~ page[4] CrLM.C. No. 208/2012 this Court, ought to seek dropping ofthe proceedings by the trial court to ensure that summary trial in such like matters does not get unnecessarily delayed. Petitioner is accordingly relegated to trial court to urge the pleas taken herein before trial court at the hearing on framing ofNotice under Section 251 ofCr.P.C., and ifit 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 primafacie case is made out against the accused ornot. Needless to say, iftrial court finds that no case is made out against petitioner, then Apex Court's decision inAdalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 see 338 will not stand in the way oftrial court to drop the proceedings against petitioner. It is so said because dropping ofproceedings atNotice 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 petitioner, personal appearance of petitioner be not insisted upon by trial court provided petitioner is represented by counsel, who does not seek adjournment. If trial court chooses to proceed against petitioner, then petitioner will have the remedy as available in the law. The above captioned three petitions and applications are accordingly disposed of in aforesaid terms while refraining to comment CrlM.C. No. 206/2012 - Pag^ Crl.M.C. No. 207/2012 upon merits, lest itmay prejudice either side atthe hearing on the framing of Notice under Section 251 of Cr.P.C. DECEMBER 16,2013 vn CrLM.C. No.206/2012 (SUNIL GAUR) JUDGE Page 6