Full Text
M.A. No. 5663/2012
GANESH CHAND CHATURVEDI ..... Petitioner
Through: Mr. Sheikh lmran, Advocate
Through: Mr. Vinod Diwakar, Additional Public Prosecutor for respondent
No.l-State Mr. Gurpreet Singh, Advocate for respondent No.2
(ii) CRL.M.C. 1620/2012 & Crl.
M.A. No. 5659/2012
GANESH CHAND CHATURVEDI ..... Petitioner
Through: Mr. Sheikh Imran, Advocate
M.A. No. 5656/2012
GANESH CHAND CHATURVEDI Crl. M.C. No. 1622/2012
Crl. M.C. No. 1620/2012 Crl. M.C. No. 1619/2012 ..... Petitioner
Page 1 2013:DHC:7708
Through: Mr. Sheikh Imran, Advocate
HON'BLE MR. JUSTICE SUNIL GAUR
11.11.2013 Quashing of Complaint No. 546/1 and impugned order of 30th January, 2009 in the above captioned first petition, complaint case
No.875/ll 10 and impugned order of 6th December, 2008 in the above captioned second petition, complaint No. 548/1 and impugned order of
30th January, 2009, in the above captioned third petition, all under Section
138 of The Negotiable Instruments Act, 1881, is sought on merits.
Since the aforesaid quashing is sought on identical grounds, therefore, with the consent of learned counsel for parties, the above- captioned three petitions were heard together and by this common order, they are being disposed of.
Learned counsel for petitioner contends that petitioner was neither the Managing Director or Director nor the signatory of the cheques in question, and was rather working with some other concern and was
Crl. M.C. No.1622j2012 Page 2 drawing the salary from the said firm. Hence, it is contended that no liability under Section 138 of the Negotiable Instruments Act, 1881 can be fastened on the petitioner and that no direct or indirect allegation has been made against petitioner in the complaint in question.
Learned counsel for respondent No.2 on the other hand opposes these petitions and submits that petitioner /accused has been summoned to face trial only after ingredients of Section 138 of The Negotiable
Instruments Act, 1881 were found to be existing in the complaints in question.
During the course of the hearing, it was disclosed by learned counsel for petitioner that Notice under Section 251 of Cr.P. C. has not been framed yet.
On this aspect, the pertinent observations of the Apex Court in
Krishan .Kumar Variar V. Share Shoppe (2010) 12 sec 485, are 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
Page 3 question ofjurisdiction before proceeding further with the case.
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, 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 proceeding with the trial. " In VIew of authoritative pronouncement of the Apex Court in Krishan Kumar (supra) as referred to hereinabove, 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., the above-captioned three petitions and the applications are accordingly disposed of 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 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 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 Page[4] \'); / 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 on his behalf. The above captioned three petition and applications are accordingly disposed of.
NOVEMBER 11,2013 vn
(SUNIL GAUR) JUDGE Page 5