Gajendra Nagpal v. Jagdeep Bhatia & Ors.

1. By way of this petition filed under Section 482 of the Code of Criminal Procedure, 1973, petitioner seeks quashing of Criminal Complaint No. 1038/1/14, under Section 138 read with Section 142 of The Negotiable Instruments Act, 1881, titled as ‘Jagdeep Bhatia Vs. Unicon Securities Pvt. Ltd. & Anr.’ and the summoning order dated 01.09.2015. 2016:DHC:2714

2. It is submitted by learned counsel for the petitioner that Notice under Section 251 Cr.P.C. has not yet been framed and the next date before the learned Trial Court is 05.04.2016.

3. Since petitioner has an alternate and efficacious remedy available to him to urge the pleas taken herein before the learned Trial Court at the time of framing of Notice under Section 251 Cr.P.C., therefore, this Court finds that inherent powers of this Court under Section 482 Cr.P.C. are not required to be invoked to quash the proceedings arising out of the complaint in question. It is being so said in view of dictum of the Apex Court in Bhushan Kumar & Anr. Vs. State (NCT of Delhi) & Anr. AIR 2012 SC 1747, which persuades this Court not to exercise inherent jurisdiction under Section 482 Cr.P.C. to entertain this petition. The pertinent observations of Apex Court in Bhushan Kumar’s case (Supra), are as under:-

Further, on this aspect, the dictum of the Apex Court in Krishan Kumar Variar Vs. Share Shoppe (2010) 12 SCC is as under:-

4. In view of authoritative pronouncement of the Apex Court in Bhushan Kumar’s case (supra,) as referred to hereinabove, inherent powers of this Court under Section 482 Cr.P.C. are not exercised and petitioner is relegated to urge the pleas taken herein before the learned Trial Court at the hearing on the point of framing of Notice under Section 251 Cr.P.C. and if it is so done, then Trial Court shall deal with the pleas raised herein by passing a speaking and reasoned order. At the stage of framing of Notice under Section 251 Cr.P.C., Trial Court is not expected to function like a post office and to mechanically frame Notice, but is rather bound by law to apply its mind to find out whether prima facie case is made out against the accused or not. Similar view has been already taken by a Coordinate Bench of this Court in S.K. Bhalla V. State and Others 180 (2011) DLT 219.

5. Needless to say, if the Trial Court finds that no case is made out against petitioner, then the decision of the Apex Court in Adalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 SCC 338 will not stand in the way of Trial Court to drop the proceedings against petitioner and if Trial Court chooses to proceed against petitioner, then petitioner will have the remedy as available in the law. It is so said because dropping of proceedings at Notice stage cannot possibly be equated with recalling of summoning order. Purely as an interim measure, till the arguments on the point of framing of Notice under Section 251 Cr.P.C. are concluded, personal appearance of petitioner be not insisted upon by the Trial Court upon petitioner filing an application under Section 205 Cr.P.C. alongwith his affidavit with the following undertaking: - (i). that the proceedings of the case shall be regularly conducted by counsel (whose name shall be disclosed in application), who shall appear on behalf of petitioner on every hearing and will not seek adjournment; (ii). that petitioner shall not dispute his identity as accused in the case; (ii). that the petitioner shall appear in person as and when directed in future to do so; and (iv). that petitioner shall not raise the question of prejudice in future.

6. It is made clear that if petitioner delays the proceedings before the Trial Court, then petitioner will not have the benefit of exemption from personal appearance extended by this Court.

7. This petition stands disposed of on the above terms.

8. A copy of this order be given dasti to the learned counsel for the parties.

SURESH KAIT (JUDGE) APRIL 01, 2016 Sb/jg