Full Text
HIGH COURT OF DELHI
CRL.M.C. 3958/2012 & Crl.
M.A. No. 18994/2012
MURLIDHAR VYAS ..... Petitioner STATE
Through: Mr. Joy Basu, Senior Advocate with Mr. Niraj Singh, Advocate
Through: Mr. P.K. Mishra, Additional Public Prosecutor for respondent No.1-
State Mr. Vikram Gupta, Advocate for respondent No.2
M.A. No. 18995/2012
MURLIDHAR VYAS ..... Petitioner STATE Crl. M.C. No.395Bj2012
Crl. M.C. No.3959j2012 Crl. M.C. No.3960j2012
Crl. M.C. NiJ.3961/2012
Through: Mr. Joy Basu, Senior Advocate. with Mr. Niraj Singh, Advocate
Through: Mr. P.K. Mishra, Additional Public Prosecutor for respondent No.1-
State Mr. Vikram Gupta, Advocate for respondent No.2
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M.A. No.18996/2012
MURLIDHAR VYAS ... Petitioner STATE
Through: Mr. Joy Basu, Senior Advocate with Mr. Niraj Singh, Advocate
Through: Mr. P.K. Mishra, Additional Public Prosecutor for respondent No.1-
State Mr. Vikram Gupta, Advocate for respondent No.2
CRL.M.C. 396112012 & Crl.
M.A. No.18997/2012 MURLIDHAR VYAS ..... Petitioner
STATE
Through: Mr. P.K. Mishra, Additional Public Prosecutor for respondent No.1-
State Mr. Vikram Gupta, Advocate for respondent No.2
HON'BLE MR. JUSTICE SUNIL GAUR
19.11.2013 Quashing of Complaint No. 2510/1/10, titled MIS India Infoline
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{0 Ltd. Vs. Carissa Investment Pvt. Ltd. & ors.; Complaint No. 2509/1110
MIS India Infoline Ltd. Vs. Altar Investment Pvt. Ltd. & ors.; Complaint
No. 2508/1110, Mls India Infoline Ltd. Vs. Dear Investment Pvt. Ltd. &
Complaint No. 249911/10 MIS India Infoline Ltd. Vs. Dalmia Housing
Finance Ltd. & ors. , and impugned summoning order of 24th October, 2008 is sought in the above captioned four petitions.
Since the aforesaid quashing is sought on identical grounds, therefore, the above-captioned four petitions were heard together and are being disposed of by this common order.
Learned senior counsel for petitioner contends that the cheques in question were issued against security and there is no existing debt or liability attracting the provisions of Section 138 of. the Negotiable
Instruments Act, 1881 and so, continuance of proceedings in afore-noted four complaints, is an abuse of process of law. In support of his submissions, learned senior counsel for petitioner placed reliance upon decision in MS. Narayana Menon Vs. State ofKerala (2006) 6 SCC 39.
During the course of the hearing, it was disclosed by learned senior counsel for petitioner that Notice under Section 251 of Cr.P. C. has not yet been framed.
Since Notice under Section 251 Cr.P.C. has not yet been framed, 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
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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 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 of the accusation to the accusq.tion to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per
Section 239 ofthe Code." Further, on this aspect, the dictum of the Apex Court ih 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 shouldfile an application before the trial court making this averment and giving the relevantfacts. 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 ofjurisdiction before proceeding further with the case.
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ORDER
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, ~fsuch 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 ofjurisdiction before further prpceeding with the trial. " In view of authoritative pronouncement of the Apex Court in Bhushan Kumar & Krishan Kumar (supra) as referred to hereinabove, without going into the merits of these complaints, these petitions and applications are disposed of while refraining to comment upon merits, lest it may prejudice either side at the hearing on framing ofNotice 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 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 rrieasure, 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 Cr/. M.C. No.3958j2012 Crl. M.C. No.3959j2012 Crl. M.C. No.3960j2012 Crl. M.C. No.3961j2012 Page 5 2013:DHC:7764 provided petitioner is represented by counsel, who does not seek adjournment on his behalf. However, if the trial court chooses to frame Notice under Section 251 Cr.P.C., then petitioner would be at liberty to avail of the remedy as available in the law. These four petitions and applications are accordingly disposed of.
NOVEMBER 19, 2013 r Cr/. M.C. No.3958/2012 Cr/. M.C. No.3959/2012 Crl. M.C. No.3960j2012 Crl. M.C. No.3961j2012 ~ JUDGE Page 6 lJ