Full Text
(1) CRL.M.C. 3238/2011 MOD CHITS PVT LTD.
Through:
Through:
(2) CRL.M.C. 3240/2011 BALRAM TANDON
Through:
Mr. Ravi Nayak, Additional Public Prosecutor for respondent-
State Advocate STATE & ANR. ..... Respondents
Through: Mr. Ravi Nayak, Additional State (3) CRL.M.C. 4014/2011 & Crl.
M.A. No. 18818/2011
MOD CHITS PVT LTD ..... Petitioner STATE&ANR.
Through: Ms. Vibha Mahajan Seth, Advocate
Crl. M.C. No.3238/2011 Crl. M.C. No.3240/2011
Crl. M.C. No.4014/2011 Crl. M.C. No.4021/2011
Page 1 2013:DHC:6642 State (4) CRL.M.C. 402112011 & Crl.
M.A. No. 18827/2011
BALRAM TANDON
Through:
Advocate
HON'BLE MR. JUSTICE SUNIL GAUR
24.10.2013 Petitioner in the above captioned first petition is the accused- company and in the second captioned petition, petitioner is the Director of the accused company, which arise out of Complaint No. CC NO. 435/KB/11 filed at the instance of Ms. Vidya Grover under Section 138 of The Negotiable Instruments Act, 1881. Petitioner in the above captioned third petition is the accused-company and petitioner in the above captioned fourth petition is the Director ofthe accused Company in
Complaint No. 436/KB/11 filed at the instance of Ms. Manju Grover under Section 138 of The Negotiable Instruments Act, 1881. These two complaints pertain to issuance of two post dated Cheques for a sum of
Crl. M.C.No.3238j2011 Page2 ~1,37,50,000/- each by petitioners to the aforesaid complainants. In the above captioned four petitions, the summoning order of 13th April, 2011 against the petitioners as accused in these two complaints has been challenged. With the consent of learned counsel for the parties, the above captioned four petitions were heard together and are being disposed of by this common order.
Learned counsel for petitioners contends that the two cheques in question were purportedly issued in respect of Memorandum of
Understanding of23rd April, 2010 (Annexure A-3) and draws attention of this Court to order of 31st July, 2010 {Annexure A-7) to point out that respondents/complainants in a civil suit filed by the accused-company, in e: which respondents/complainants had undertaken to not to encash the cheques in question and not to handover the possession of the property in dispute, which was subject matter of civil litigation, till the aforesaid
Memorandum of Understanding of 23rd April, 2010 (Annexure A-3) is fully acted upon between the parties. According to learned counsel for petitioners, the aforesaid Memorandum of Understanding of 23rd April, 2010 (Annexure A-3) was not acted upon and despite this fact, the· cheques in question were presented for encashment. Attention of this
Court was also drawn by learned counsel for petitioners to order of 20th January, 2011 in the civil proceedings to highlight that the aforesaid
Memorandum of Understanding of 23rd April, 2010 (Annexure A-3) was not acted upon and still the cheques were presented for encashment on
29th January, 2011.
Crl. M.C. No.3238j2011 Page 3 Thus, while relying upon decisions in Rangappa Vs. Sri Mohan
ORDER
(2010) 11 SCC 441; Collage Culture & ors. Vs. Apparel Export Promotion Council 2007 (99) DRJ 251; MIS Laxmi Dyechem Vs. State of Guajrat & ors. 2013 Crl.L.J.3288 & Lalan Prasad Vs. State ofJharkhand & ors.' 2004 Crl. J. 3622, learned counsel for petitioner contends that there was no existing debt or liability upon petitioners at the time of issuance of cheques and therefore, ingredients of Section 138 of The Negotiable Instruments Act, 1881, are not attracted. Lastly, learned counsel for petitioners on instructions submitted that petitioners are ready to act upon the aforesaid Memorandum of Understanding of 23rd April, 2010 (Annexure A-3), provided respondent No.2-complainants hand over ~- the actual physical possession ofthe property in question and that learned counsel for respondent on the last date ofhearing had sought adjournment to seek instructions in this regard. Be that as it may. Nothing stops petitioners to seek compounding ofthe offence in question before the trial ifthe matter proceeds on merits. At the hearing it was brought to the notice of this Court that Notice under Se.ction 251 Cr.P.C. has not yet been framed against petitioners. Since Notice under Section 251 Cr.P.C. has not yet been framed, therefore, dictum of Apex Court in Krishan Kumar Variar v. Share Shoppe (2010) 12 SCC persuades this Court not to exercise inherent jurisdiction under Section 482 Cr.P.C. to entertain these petitions. The dictum ofthe Apex Court in Krishan Kumar (Supra), is as under:- Page[4] "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 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 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.
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 Kris~an Kumar (supra) as referred to hereinabove, the above-captioned four petitions and the applications are disposed of while refraining to comment upon merits of these cases, lest it may prejudice either side at trial, with liberty to petitioners to urge the pleas taken herein while relying upon the decisions cited before the trial court at the stage of hearing on the point of framing of Notice and if it is so done, then trial Crl. M.C. No.3240j2011 PageS court shall deal with the pleas raised herein by passing a speaking order in the light of legal position as reiterated by the Apex Court in M/s Laxmi Dyechem (Supra). Needless to say, if the trial court proceeds to drop the proceedings qua petitioners, then the Apex Court's decision in Ada/at 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 represented by counsel, who does not seek adjournment. The above-captioned four petitions and the applications are accordingly disposed of.