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/o RAJEEV RANJAN KUMAR
Through: ..... Petitioner Mr. Rajiv Ranjan Dwivedi and Mr. Sanjay Singh, Advocates
State Mr. Jai Singh, Advocate for Mr.Sunil Kumar, Advocate for · respondent No.2
HON'BLE MR:JUSTICE SUNIL GAUR
24.10.2013 Quashing of complaint No. 85/2010 under Section 138 of The
Negotiable Instruments Act, 1881 titled Mls. Yamodima Storage Systems
Ltd. Vs. Mls. Welcome World Electrical Pvt. Ltd. and the summoning order of 13th May, 20I0 is sought while raising the question of territorial jurisdiction as well as on merits.
Learned counsel for petitioner submits that the complaint in question has been filed without going into root of the matter and summoning of petitioner as an accused in the complaint in question is abuse of process of law. Learned counsel for petitioner submits that the
Crl. M.C. No.3384/2011 Pagel 2013:DHC:6651 cheque in question was not issued for discharge of any debt or liability and that the complaint in question lacks territorial jurisdiction. In support of his submissions, learned counsel for petitioner relies upon decision in
ICICI Bank Ltd. Vs. Subhash Chand Bansal & ors. 160 (2009) DLT 379.
( . Learned counsel for respondents refutes the aforesaid submissions
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~ of learned counsel for petitioner while relying upon decisions in K.M
Singh Vs. Secretary Association ofIndian Universities & ors. 44 (1991)
DLT 735; Shikha Bhatia Vs. Gaurav Bhatia & ors. 178 (2011) DLT 128
& Hardeep Bajaj Vs. ICICI Bank Ltd. 2013 (2) AD (Delhi) 471 and decision of 22nd February, 2012 of this Court in Crl. M.C. 4264/2011
Shoreline Infrastructure Developers Ltd. & ors. Vs. State & Anr..
At this stage, learned counsel for petitioner submits that Notice under Section 251 of Cr. P. C. 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 petitioner is relegated to seek dropping of proceedings under Section 138 of The
Negotiable Instruments Act, 1881 while urging the pleas taken herein before the trial court at the stage of framing of Notice under Section 251 of Cr.P. C. Such a course is being adopted in view of dictum of Apex
Court in Krishan Kumar Variar v. Share Shoppe (2010) 12 SCC 485, which 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
Cr/. M.C. No.3384/2011 Page 2
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"' 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.
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 m Krishan Kumar (supra) as referred to hereinabove, this petition IS accordingly disposed of with liberty to petitioner to urge the pleas taken herein before the trial court at the stage ofhearing 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 it lacks territorial jurisdiction or that no case is made out against petitioner, then the Apex Court's decision in Ada/at Prasad Vs. Rooplal Jindal and Ors. (2004) 7 sec 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, Crl. M.C. No.3384/2011 Page[3] \!()...; \ 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 ofCr.P.C. OCTOBER 24, 2013 r Crl. M.C. No.3384/2011 (SUNIL GAUR) JUDGE Page[4]