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(i) CRL.M.C. 3994/2012 & Cri.M.As.19689 & 19085/12
(ii) o;o SOFTLINE MEDIA LIMITED & ORS. ..... Petitioners
Through: Mr. Raj Kumar Mittal, Mr. Nitin Mittal and Mr. Ratish Kumar, Advocates
Through: Mr. Anil Gael, Advocate
SOFTLINE MEDIA LIMITED & ORS. ..... Petitioners
Through: Mr. Raj Kumar Mittal, Mr. Nitin Mittal and Mr. Ratish Kumar, Advocates
Through: Mr. Anil Gael, Advocate
03.10.2013 ..
In the above captioned first petition, quashing of Criminal
Complaint No.14778/1111 and in the second petition, quashing of
Criminal Complaint No.l4805/1111 both titled Mls. Esse! Shyam
Communication Limited v. Mls. Media Eleven Private Limited & Ors. and under Section 138 of the Negotiable Instruments Act, 1881, is sought on
CRLMC. 3994 & 399512012 Page 1 -' . J 2013:DHC:6770 identical grounds and so, with the consent of learned counsel for the parties, both these petitions were heard together and are being disposed of by this common order.
With much vehemence, it was urged by learned counsel for petitioners that the cheques in question have not been issued by petitioners nor they have any liability to pay the dues. In support of above submissions, reliance was placed upon decisions in K.K. Ahuja v. VK.
Vora and Another (2009) 10 SCC 48; National Small Industries
Corporation Limited v. Harmeet Singh Paintal and Another (2010) 3
SCC 330 and Harshendra Kumar D. Rebatilata Kaley etc. AIR 2011 SC
1090.
To the contrary, learned counsel for respondent had relied upon
Apex Court's decision in Mohit @ Sonu and Another v. State of UP. and
Another AIR 2013 SC 2248 to contend that the impugned summoning order is revisable and so, inherent jurisdiction of this Court·ought not to be invoked by petitioners.
Upon hearing and on perusal of the complaints in question, impugned summoning orders and the material on record, I find that by applying the ratio of the Apex Court's decision in Mohit @ Sonu (supra), the instant petitions can be treated as criminal revision petitions against impugned summoning orders (Annexure P-9) [in crl. MC. 3994/12] and
(Annexure P-10) {in Crl. MC.3995/12]. Thus, I find that petitioners instead of invoking inherent jurisdiction or criminal revision petition jurisdiction of this Court or of Sessions Court ought to have raised the pleas taken herein before the trial court at the stage of hearing on the
_; point of framing of Notice. Petitioners ought to do so in view of the _~
CRL.MC. 3994 & 3995/2012 Page 2 dictum of the Apex Court in Krishan Kumar Variar v. Share Shoppe
ORDER
(2010) 12 sec 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 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 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 Courts in Krishan Kumar (supra) as referred to hereinabove, both these petitions and the applications are accordingly 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 CRL.MC. 3994 & 399512012 Page[3].J J.J J 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 the Apex Court's decision in Ada/at Prasad (surpa) would not stand in the way of trial court to do so. Trial court be apprised ofthis order fortinvith.
OCTOBER 03, 2013 s CRL.MC. 3994 & 399512012 ~u::RJ JUDGE Page[4] _/ _/.J _/