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HIGH COURT OF DELHI
CRL.M.C. 1048/2018
SANJIV GUPTA,DIRECTOR M/S SUNWORLD RESIDENCY PRIVATE LIMITED & ANR Petitioners
Through: Mr.Nitin K.Gupta with Mr.Rahul Sinha,Advocates
A
$-71 •
HIGH COURT OF DELHI
CRL.M.C. 1048/2018
SANJIV GUPTA,DIRECTOR M/S SUNWORLD RESIDENCY PRIVATE LIMITED & ANR Petitioners
Through: Mr.Nitin K.Gupta with Mr.Rahul Sinha,Advocates
VERSUS
M/S PMKIMPEXPRIVATE LIMITED THROUGH ITS DIRECTOR SH MAYANK KHEMKA Respondent
Through: Mr.Hariharan,Sr. Advocate with Mr. Sharad Bansal& Mr.M.A.Niazi, Advocates
Through: Mr.Hariharan,Sr. Advocate with Mr. Sharad Bansal& Mr.M.A.Niazi, Advocates
CORAM:
HON'BLE MS.JUSTICE ANU MALHOTRA
27.02.2018 CrI.M.A.No.3799-3800/2018(Exemption^
This is an application filed on behalfofthe petitioner for exemption from filing certified copies ofthe annexures.
Exemption allowed,subjecttojustexceptions.
27.02.2018 CrI.M.A.No.3799-3800/2018(Exemption^
This is an application filed on behalfofthe petitioner for exemption from filing certified copies ofthe annexures.
Exemption allowed,subjecttojustexceptions.
CRL.M.C.1036/2018& CRL.M.A.3798/2018(stay)
Learned counsel on behalfofthe respondent is present pursuantto the advance notice. Videthe present petition the petitioner assails the impugned order dated 14.12.2017 in CC No.7926/2017 passed by the MM-02(NL
Act)/WEST/THC whereby on the basis of pre-summoning evidence in a case under Section 138 ofNI Actled by M/sPMKImpex Pvt.Limited., the complainantthereofarrayed on record as respondentto the present petition.
2018:DHC:8479 it was observed to the effect that a prima facie offence punishable under
Section 138 ofNI Act was made out and that all statutory requirements had been complied with and the accused i.e. the petitioners therein had been summoned for the next date of hearing i.e. 06.04.2018. On behalf of the petitioners it has inter alia been submitted to the effect that all the petitioners are residents ofA-4,Sector-4,Noida-231'301 and it has been thus submitted oh behalfofthe petitioners whilst placing reliance on the verdict of the Apex Court in Abhijit Pawar vs. Hemant Madhukar Nimbalkar &
Anr. (2017) 3 SCC 528 to contend that the requisite inquiry in terms of
Section 202 Criminal Procedure Code, 1973 has not been conducted by the learned Trial Court before issuing ofthe summoning order which was thus vitiated.
Observations in para 23 of the verdict ofthe Apex Court in Abhijit
Pawar(supra)are to the effect:
"Admitted position in law is, that in those cases where the accused is residing at a place beyond the area in which the
Magistrate exercises his jurisdiction, it is mandatory on the part ofthe Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 CrPC was amended in the year 2005 by the Code ofCriminalProcedure(Amendment)
Act, 2005, with effectfrom 22-6-2006 by adding the words
"and shall, in a case where the accused is residing at aplace beyond the area in which he exercises hisjurisdiction". There is a vitalpurpose or objective behind this amendment, namely, to ward offfalse complaints againstsuch persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation
. on the Magistrate to conduct enquiry or direct investigation before issuing,the process, so thatfalse complaints arefiltered andrejected. The aforesaidpurpose isspecifically mentionedin the note appendedto the Billproposing the saidamendment."
Learned counsel present on advance notice submits that without prejudice to the contentions that may be raised, he concedes to the summoning order being set aside for the requisite inquiry to be conducted in terms ofSection 202 CriminalProcedure Code,1973 as also observed by the
Apex Court vide paragraph 32 in Abhijit Pawar(supra) which reads to the effect:
"For the aforesaid reasons, the criminal appeal arising out of
SLP (Crl.) No. 9318 of2012 is allowed thereby quashing the notice dated 24-11-2009 in respect ofA-1 with direction to the learned Magistrate to take up the matter afresh qua A-1 and pass necessary orders as arepermissible in law, afterfollowing the procedure contained in Section 202 Code of Criminal
Procedure, 1973." In the circumstances ofthe case, as it is apparent that the petitioners are residents out ofthe bounds ofDelhi and the requisite inquiry in terms of
Section 202 Criminal Procedure Code, 1973 is indicated to have not been conducted at the time ofthe issuance ofthe summoning order,the impugned summoning order in CC No.7926/20J7 dated 14.12.2017 is set aside with directions to the learned Magistrate to follow the requisite procedure in terms of Section 202 Criminal Procedure Code, 1973 which is directed to be conducted within a period oftwo months from the date ofreceipt ofthis order.
Copy ofthe order be given dasti as prayed to either side.
ANU MALHOTRA,J FEBRUARY 27,2018 ns
Learned counsel on behalfofthe respondent is present pursuantto the advance notice. Videthe present petition the petitioner assails the impugned order dated 14.12.2017 in CC No.7926/2017 passed by the MM-02(NL
Act)/WEST/THC whereby on the basis of pre-summoning evidence in a case under Section 138 ofNI Actled by M/sPMKImpex Pvt.Limited., the complainantthereofarrayed on record as respondentto the present petition.
2018:DHC:8479 it was observed to the effect that a prima facie offence punishable under
Section 138 ofNI Act was made out and that all statutory requirements had been complied with and the accused i.e. the petitioners therein had been summoned for the next date of hearing i.e. 06.04.2018. On behalf of the petitioners it has inter alia been submitted to the effect that all the petitioners are residents ofA-4,Sector-4,Noida-231'301 and it has been thus submitted oh behalfofthe petitioners whilst placing reliance on the verdict of the Apex Court in Abhijit Pawar vs. Hemant Madhukar Nimbalkar &
Anr. (2017) 3 SCC 528 to contend that the requisite inquiry in terms of
Section 202 Criminal Procedure Code, 1973 has not been conducted by the learned Trial Court before issuing ofthe summoning order which was thus vitiated.
Observations in para 23 of the verdict ofthe Apex Court in Abhijit
Pawar(supra)are to the effect:
"Admitted position in law is, that in those cases where the accused is residing at a place beyond the area in which the
Magistrate exercises his jurisdiction, it is mandatory on the part ofthe Magistrate to conduct an enquiry or investigation before issuing the process. Section 202 CrPC was amended in the year 2005 by the Code ofCriminalProcedure(Amendment)
Act, 2005, with effectfrom 22-6-2006 by adding the words
"and shall, in a case where the accused is residing at aplace beyond the area in which he exercises hisjurisdiction". There is a vitalpurpose or objective behind this amendment, namely, to ward offfalse complaints againstsuch persons residing at a far-off places in order to save them from unnecessary harassment. Thus, the amended provision casts an obligation
. on the Magistrate to conduct enquiry or direct investigation before issuing,the process, so thatfalse complaints arefiltered andrejected. The aforesaidpurpose isspecifically mentionedin the note appendedto the Billproposing the saidamendment."
Learned counsel present on advance notice submits that without prejudice to the contentions that may be raised, he concedes to the summoning order being set aside for the requisite inquiry to be conducted in terms ofSection 202 CriminalProcedure Code,1973 as also observed by the
Apex Court vide paragraph 32 in Abhijit Pawar(supra) which reads to the effect:
"For the aforesaid reasons, the criminal appeal arising out of
SLP (Crl.) No. 9318 of2012 is allowed thereby quashing the notice dated 24-11-2009 in respect ofA-1 with direction to the learned Magistrate to take up the matter afresh qua A-1 and pass necessary orders as arepermissible in law, afterfollowing the procedure contained in Section 202 Code of Criminal
Procedure, 1973." In the circumstances ofthe case, as it is apparent that the petitioners are residents out ofthe bounds ofDelhi and the requisite inquiry in terms of
Section 202 Criminal Procedure Code, 1973 is indicated to have not been conducted at the time ofthe issuance ofthe summoning order,the impugned summoning order in CC No.7926/20J7 dated 14.12.2017 is set aside with directions to the learned Magistrate to follow the requisite procedure in terms of Section 202 Criminal Procedure Code, 1973 which is directed to be conducted within a period oftwo months from the date ofreceipt ofthis order.
Copy ofthe order be given dasti as prayed to either side.
ANU MALHOTRA,J FEBRUARY 27,2018 ns
JUDGMENT