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$-14 & 19 HIGH COURT OF DELHI
CRL.M.C. 2695/2013 & Crl.
M.A. No. 10337-38/2013
PAWAN KUMAR Petitioner
Through: Mr. Deepak Sabharwal,Advocate
$-14 & 19 HIGH COURT OF DELHI
CRL.M.C. 2695/2013 & Crl.
M.A. No. 10337-38/2013
PAWAN KUMAR Petitioner
Through: Mr. Deepak Sabharwal,Advocate
VERSUS
B L SINGHAL & ANR.
Through:
Respondents Mr, Mukesh Gupta, Additional Public Prosecutor for respondent-
No. 1- State
Through:
Respondents Mr, Mukesh Gupta, Additional Public Prosecutor for respondent-
No. 1- State
CRL.M.C. 2708/2013 & Crl.
M.A. No. 10371-72/2013
PAWAN KUMAR Petitioner
Through: Mr. Deepak Sabharwal, Advocate
M.A. No. 10371-72/2013
PAWAN KUMAR Petitioner
Through: Mr. Deepak Sabharwal, Advocate
VERSUS
SUDHA SINGHAL & ANR. Respondents
Through: Mr. Mukesh Gupta, Additional Public Prosecutor for respondent-
No. 1- State
Through: Mr. Mukesh Gupta, Additional Public Prosecutor for respondent-
No. 1- State
CORAM;
HON'BLE MR. JUSTICE SUNIL GAUR
16.07.2013 In the above captioned two petitions, petitioner has been summoned as an accused vide common impugned order of 6j'^
September, 2010 in two complaints under Section 138 of The Negotiable
Instruments Act, 1881 pertaining to cheques amount of ?2,00,000/- and
?1,00,000/- respectively. Since petitioners counsel have .addressed
Crl M.C. No.2695/2013 Crl M.C. No.2708/2013 Page 1
2013:DHC:7397 identical arguments in the above captioned two petitions, therefore, these two petitions are being disposed ofby this common order.
Alleging that the necessary ingredient of there-being an existing
'debt and liability' is lacking in the two complaints in question. Quashing of both these complaints under Section 138 of The Negotiable
Instruments Act, 1881 and the impugned order is sought by petitioner.
Learned counsel for petitioner submitted that loan was advanced by complainant to petitioner in the year 2004 whereas the cheque in question was issued in the year 2009 and the said loan was repayable within one or two years. According to petitioner's counsel, a complaint was made regarding the loss of cheques in September, 2009 and petitioner's bank account stood closed in the year 2006 and there was no occasion for petitioner to issue the two cheques in question.
During the course ofhearing, attention ofthis Court is drawn to the cross-examination of complainant to point out that the complainant could not even understand the meaning of legal liability and so, his deposition does not even prima facie establish the case set out in these two complaints. In this petition, Annexure- XI reveals that the statement of petitioner under Section 313 r/w Section 281 Cr.P.C. has been recorded.
Reliance placed by counsel for petitioner upon decision of Apex Court in
'A. V. Murthy Vs. B.S. Nagabasavanna' (2002) 2 SCC 642 is misplaced, as it is on distinguishable facts. Another decision in Krishna Kumar Cariar
Vs. Share Shoppe (2010) 12 SCC 485 rehed upon by counsel for petitioner is of no help to the case of petitioner as this petition had come up before the Apex Court for consideration after contesting on merits.
Upon hearing and bare perusal of the impugned order, the two
Crl M.C. No.2695/2013 Page 2 Crl M.C. No.2708/2013 complaints in question, deposition of complainant and statement of petitioner made before the trial court, I find that this is not a fit case to invoke Section 482 Cr.P.C. to dwell into disputed question of fact, as even already recorded by the trial court, atthis belated stage, this Court is not inclined to entertainthis petition.
In view of dictum of Apex Court in Krishna Kumar Cariar Vs.
Share Shoppe (2010) 12 SCC 485, which reads as under:-
"In such cases where the accused or any other person raised an objection that the trial courthas nojurisdiction in the matter, the said person shouldfile and application before the trial court making this averment andgiving the relevantfacts.
Whether a court hasjurisdiction to try/ entertaina case will, at least inpart, dependupon thefacts ofthe case. Hence, instead ofrushing to the higher courtagainst the summoning order, the person concerned should approach the trial court with a suitable applicationfor 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. "
Since these two petitions have been filed belatedly and require adjudication on disputed question of facts, therefore, these two petitions are notentertained and are dismissed while notcommenting onthe merits of this case, lest it may prejudice petitioner at trial.
Both thepetitions and theapplications are accordingly disposed of
JULY 16, 2013 r (SUNIL GAUR)
JUDGE
Crl. M.C. No.2695/2013 Page 3 CrI. M.C. No.2708/2013
16.07.2013 In the above captioned two petitions, petitioner has been summoned as an accused vide common impugned order of 6j'^
September, 2010 in two complaints under Section 138 of The Negotiable
Instruments Act, 1881 pertaining to cheques amount of ?2,00,000/- and
?1,00,000/- respectively. Since petitioners counsel have .addressed
Crl M.C. No.2695/2013 Crl M.C. No.2708/2013 Page 1
2013:DHC:7397 identical arguments in the above captioned two petitions, therefore, these two petitions are being disposed ofby this common order.
Alleging that the necessary ingredient of there-being an existing
'debt and liability' is lacking in the two complaints in question. Quashing of both these complaints under Section 138 of The Negotiable
Instruments Act, 1881 and the impugned order is sought by petitioner.
Learned counsel for petitioner submitted that loan was advanced by complainant to petitioner in the year 2004 whereas the cheque in question was issued in the year 2009 and the said loan was repayable within one or two years. According to petitioner's counsel, a complaint was made regarding the loss of cheques in September, 2009 and petitioner's bank account stood closed in the year 2006 and there was no occasion for petitioner to issue the two cheques in question.
During the course ofhearing, attention ofthis Court is drawn to the cross-examination of complainant to point out that the complainant could not even understand the meaning of legal liability and so, his deposition does not even prima facie establish the case set out in these two complaints. In this petition, Annexure- XI reveals that the statement of petitioner under Section 313 r/w Section 281 Cr.P.C. has been recorded.
Reliance placed by counsel for petitioner upon decision of Apex Court in
'A. V. Murthy Vs. B.S. Nagabasavanna' (2002) 2 SCC 642 is misplaced, as it is on distinguishable facts. Another decision in Krishna Kumar Cariar
Vs. Share Shoppe (2010) 12 SCC 485 rehed upon by counsel for petitioner is of no help to the case of petitioner as this petition had come up before the Apex Court for consideration after contesting on merits.
Upon hearing and bare perusal of the impugned order, the two
Crl M.C. No.2695/2013 Page 2 Crl M.C. No.2708/2013 complaints in question, deposition of complainant and statement of petitioner made before the trial court, I find that this is not a fit case to invoke Section 482 Cr.P.C. to dwell into disputed question of fact, as even already recorded by the trial court, atthis belated stage, this Court is not inclined to entertainthis petition.
In view of dictum of Apex Court in Krishna Kumar Cariar Vs.
Share Shoppe (2010) 12 SCC 485, which reads as under:-
"In such cases where the accused or any other person raised an objection that the trial courthas nojurisdiction in the matter, the said person shouldfile and application before the trial court making this averment andgiving the relevantfacts.
Whether a court hasjurisdiction to try/ entertaina case will, at least inpart, dependupon thefacts ofthe case. Hence, instead ofrushing to the higher courtagainst the summoning order, the person concerned should approach the trial court with a suitable applicationfor 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. "
Since these two petitions have been filed belatedly and require adjudication on disputed question of facts, therefore, these two petitions are notentertained and are dismissed while notcommenting onthe merits of this case, lest it may prejudice petitioner at trial.
Both thepetitions and theapplications are accordingly disposed of
JULY 16, 2013 r (SUNIL GAUR)
JUDGE
Crl. M.C. No.2695/2013 Page 3 CrI. M.C. No.2708/2013
JUDGMENT