Full Text
CRL.M.C. 287/2011 & Crl.
M.A. No. 1142/2011
NIRMAL JAIN ••••• Petitioner
Through: Mr.DeepakKohli, Advocate
Through: Mr. Ravi Nayak, Additional Public Prosecutor for respondent No.1-
State
M.A. No. 1144/2011
NIRMAL JAIN Petitioner
Through: Mr. Deepak Kohli, Advocate
Through: Mr. Ravi Nayak, Additional Public Prosecutor for respondent No.l-
State
ORDER o/o 27.11.2013 In the above captioned two petitions, quashing of impugned summoning order of 21®^ November, 2011 in CC No. 2432/1 & CC NO. 2403/1, both titled as M/S S.A.S. Pharmceuticals Vs. M/S Milan Trading
Company in proceedings under Section 138 of The Negotiable
Instruments Act, 1881 is sought bypetitioner while raising thequestion of
Crl. M.C. No. 287/2011 Page 1 Crl M.C No.288/2011
2013:DHC:6620 territorial jurisdiction.
With the consent of counsel for the parties, these petitions were heard together and are being disposed ofby this common order.
At the hearing, learned counsel for petitioner submitted that the complaints in question could have been filed only in Mumbai, where the cheques in question were drawn and presented and submitted that the complaint in question does not satisfy ingredients ofSection 138 of The
Negotiable Instruments Act, 1881.
During the course of the hearing, learned counsel for petitioners informed that in the complaints in question. Notice under Section 251 of the Cr.P.C. has not yet been framed.
Since Notice under Section 251 Cr.P.C. has not yet been framed, so it is deemed appropriate to relegate petitioners 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 ofDelhi) & 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 inBhushan Kumar (Supra), are as unden-
"17. It is inherent in Section 251 of the Code that when an accused appears 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
Crl. M.C. No. 287/2011 Page 2 Crl. M.C. No.288/2011 disclosed and if the answer is in the affirmative, the
Magistrate shall explain the substance ofthe accusation to the accusation to the accused and ask him whether he pleads guilty otherwise, heis bound todischarge the accused asper
Section 239 ofthe Code." Further, on this aspect, the dictum of the Apex Court in Krishan
Kumar Variarv. Share Shoppe (2010) 12SCC 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 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 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 thispurpose andthe trial court should after hearing both the sides and recording evidence, if necessary, decide the question ofjurisdiction before proceedingfurther 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, ifsuch 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 proceedingwith the trial." In view of authoritative pronouncement of the Apex Court in Crl M.C. No. 287/2011 Page 3 Crl. M.C. No. 288/2011 Bhushan Kumar & Krishan Kumar (supra) as referred to hereinabove, these two 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 petitioners to urge the pleas taken herein before the trial court at the stage of hearing on the point of framing ofNotice 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 proceeds to drop the proceedings qua petitioners, then the Apex Court's decision in Adalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 SCC 338 would not stand in the way of trial court to do so. Till the trial court decides to frame or not to frame Notice under Section 251 Cr.P.C. against petitioners, personal appearance of petitioners before the trial court be not insisted, provided they are duly represented by counsel, who does not seek adjournment. Needless to say that if the trial court chooses to frame Notice under Section 251 Cr.P.C., then petitioners would be at libertyto avail of the remedy as available in the law. The above captionedtwo petitions and applicationsare accordingly disposed of Dasti.
JUDGE NOVEMBER 27,2013 r