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W CRL.M.C. 1^1912^12 & Crl.M.A.]571fS/2ni2 HARISH MAHENDRU petitioner
Through: Mr. Ajay Kr. Chopra and Ms. Sheely Jain, Advocates
Through: Nemo (») CRL.M.C. 3018/2012 & Crl.M.A.15871/2ni2
HARISH MAHENDRU Petitioner
Through: Mr. Ajay Kr. Chopra and Ms. Sheely Jain, Advocates
Through: Nemo
25.10.2013 In above captioned-two petitions, quashing of complaints i.e.
1540/10 titled Sh. Anil Modi v. Sh. Harish Mahendru and No.1539/10 titled Smt. Shefali Modi v. Sh. Harish Mahendru both under Section 138 ofThe 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 petitioner, the above- captioned two petitions were heard together and by this common order, theyare being disposed of
Learned counsel for petitioner contends that there is lack of
Crl. M.Cs. 2979 &3018 of2012 j 2013:DHC:7712 temtonal jurisdiction and there is no existing debt or liability attracting theprovisions ofSection 138 ofthe NegotiableInstrumentsAct, 1881 and so, continuance ofproceedings in aforesaidtwo criminal complaints, is an abuse of process of law.
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 yet been framed.
On this aspect, the pertinent observations of the Apex Court in
Krishan Kumar Variar v. Share Shoppe (2010) 12 SCC 485, are as under;-
ORDER
4. In our opinion, in such cases where the accused or any otherperson 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 acourt hasjurisdiction to try/entertain acase will, at least in part, depend upon the facts ofthe case. Hence, instead ofrushing to the higher court against the summoning order, the person concerned should approach the trial court with asuitable application for thispurpose andthe trialcourtshouldafter hearing both the sides and recording evidence, ifnecessary, decide the question ofjurisdiction before proceedingfurther with the case.
5. For the reasons stated hereinabove, the impugned judgment and order is set aside and the appeal is allowed The appellant, ifso advised, may approach the trial court with asuitable application in this connection and, ifsuch an application isfiled, the trial court shall after hearing both the sides and after recording evidence on the question on CrlM.Cs. 2979 &3018 of2012 Page 2 jurisdiction, shall decide the question ofjurisdiction before furtherproceeding 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 ofNotice under Section 251 of Cr.P.C, the above-captioned two petitions and the applications are accordingly disposed ofwith liberty to petitioner to urge the pleas taken herein before the trial court at the stage ofhearing on the point offraming ofNotice under Section 251 of Cr.P.C. and ifit is so done, then trial court shall deal with the pleas raised herein by passing aspeaking order. Needless to say, if the trial court finds that it lacks territorial jurisdiction or that no case is made out against petitioners, then the Apex Court's decision in Adalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 see 338 will not stand in the way oftrial court to drop the proceedings against petitioner and iftrial 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 on his behalf.
JUDGE OCTOBER 25, 2013 s