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(i) CRL.M.C. 4249/2012 & CrLM.A. No.19889/2012
DURGA PRASAD PANDEY Petitioner.
Ttirough: Mr. S.K. Chaturvedi, Advocate
Respondent
Through: Mr. Sunil Mishra & Mr. Dilawar Singh, Advocates.
(ii) CRL.M.C. 216/2013 PRAMOD KUMAR SRIVASTAVA Petitioner
Through; Mr. S.K. Chaturvedi, Advocate
RUPA SRIVASTAVA Petitioner
Through: Mr. S.K. Chaturvedi, Advocate
Crl M.C. No.217/2013 5^ 2013:DHC:7297 f'
23.10.2013 Petitioner in the above-captioned first petition is the Chairman of accused-company, whereas petitioner in the above-captioned second petition is the Director and petitioner in the above-captioned third petition is the Managing Director of the accused-company. The above-captioned three petitions arise out of one complaint under Section 138 of the
Negotiable Instruments Act, 1988, in which petitioners have been summoned as accused. The order of 29^ September, 2011 summoning petitioners as accused is a common order in the above-captioned three petitions. With the consent of learned counsel for parties, the above- captioned three petitions are heard together and are being disposed of by this common order. In these petitions, quashing of complaint under
Section 138 of the Negotiable Instruments Act, 1988 and the summoning order is sought on merits.
At the hearing it was brought to the notice ofthis Court that Notice under Section 251 Cr.P.C. has not yet been framed. Petitioners' counsel relied upon decision in Kavita Aggarwal vs. State 2012 (186) DLT 180 to contend that the liability under Section 138 of the Negotiable Instruments
Act, 1988 is of the person who issues a cheque in discharge of legal and enforceable debt or liability. On the contrary, learned counsel for respondent had placed reliance upon Apex Court's decision inKKAhuja
Crl.M.C. No.4249/2012 Page 2 Crl.M.C. No.216/2013
Crl M.C.No.217/2013
Vs. VK. Vora & Anr. 2009 (3) JCC (NI) 194 to highlight the concept of constructive liability.
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;-
"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 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 P' 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 Crl M.C. No.4249/2012 Page 3 Crl M.C. No.216/2013 Crl M.C. No.217/2013 Krishan Kumar (supra) as referred to hereinabove, the above-captioned three 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 court shall deal with the pleas raised herein by passing a speaking order. Needless to say, if the trial court proceeds to drop the proceedings qua petitioners, then theApex Court's decision inAdalat 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 three petitions and the applications are accordingly disposed of.
(SUNIL GAUR) JUDGE Page 4