Full Text
CRL.M.C. No. 4163/2012 & Crl.
M.A. No. 19627/2012
SHANKARA PILLAI KRISHNA KUMAR ..... Petitioner
Through: Mr. Rohit P. Ranjan & Mr. Rakesh Gautam, Advocates
ThroughL Mr. Ravi Nayak, Additional Public Prosecutor for respondent No.1-
State
Crl.M.A. No.17950/2013 (U/s 482 Cr.P.C.)
Allowed subject to all just exceptions.
Crl.M.A. No.17949/2013 (U/s 482 Cr.P.C.)
When this petition was dismissed in default on 12th November, 2013 none had appeared for the second respondent/ complainant, therefore, issuance of notice to the second respondent is dispensed with.
For the reasons stated in the application, it is allowed and the main petition is directed to be restored to its original position.
Application is disposed of.
CRL.M.C. No. 4163/2012 & Crl.
M.A. No. 19627/2012
Quashing of complaint No. 3725/1/12 Kaveri Plastics Vs. Nfto Gaz
Pvt. Ltd. & ors., under Section 138 of The Negotiable Instruments Act, 2013:DHC:6191
Crl. M.C. No. 4163/2012 Page 2 1881 is sought in this petition.
While entertaining this petition, second petitioner was put to notice, who had entered appearance on 27th February, 2013. None has appeared on behalf of second respondent today.
At the hearing, learned counsel for petitioner had disclosed that petitioner is appearing through counsel and now the matter is fixed for
15th January, 2014 before the trial court for service of complaint upon other accused and submits that the Notice under Section 251 of the
Cr.PC. has not yet been framed.
Since petitioner has an alternate efficacious remedy to urge the pleas taken herein before the trial court at the hearing on the framing of
Notice under Section 251 of Cr.P.C., therefore, inherent powers of this
Court under Section 482 of Cr.P.C. is not being exercised and it is deemed appropriate to relegate petitioner to urge the pleas taken herein before the trial court at the hearing on the point of framing of Notice under Section 251 of Cr.P.C., as the dictum of Apex Court in Bhushan
Kumar & Anr. Vs. State (NCT of Delhi) & Anr. AIR 2012 SC 1747 persuades this Court not to exercise inherent jurisdiction under Section
482 Cr.P.C. to entertain this petition. 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
Crl. M.C. No. 4163/2012 Page 3 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 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 Crl. M.C. No. 4163/2012 Page 4 Bhushan Kumar & Krishan Kumar (supra) as referred to hereinabove, this petition and applications are disposed of while refraining to comment upon merits, lest it may prejudice either side at the hearing on framing of Notice under Section 251 of Cr.P.C., with liberty to petitioner to urge the pleas taken herein before the trial court at the stage of hearing on the point of framing of Notice and if it is so done, then trial court shall deal with the pleas raised herein by passing a speaking and reasoned order. Needless to say, if the trial court finds that no case is made out against petitioner, then the 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 the proceedings against petitioner and if trial court chooses to proceed against petitioner, then petitioner will have the remedy as available in the law. Purely as an interim measure, till the 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 the trial court provided petitioner is represented by counsel, who does not seek adjournment. This petition and the application 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 NOVEMBER 29, 2013 r