CRL.M.C./1548/2011 of RAJIV MITTAL Vs REI SIX TEN RETAIL LTD.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.M.C. 1548/2011 & Crl.M.A.5663/2011

RAJIV MITTAL

..... Petitioner

Through: Counsel (appearance not given)

versus

REI SIX TEN RETAIL LTD.

..... Respondent

Through:

Mr. Joy Basu, Sr. Advocate with Mr. Niraj Singh and Mr. Alok Kumar, Advocates

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

% 17.12.2013

In this petition, quashing of criminal complaint No. 1333/2010 under Sections 138/142 of The Negotiable Instruments Act, 1881 and the summoning order of 9[th] February, 2010 is sought on merits.

Arguing counsel for petitioner is said to be not available today. Adjournment opposed by opposite side on the ground that after getting the proceedings stayed vide order of 24[th] August, 2011, this matter has been got adjourned from time to time just to delay the proceedings before trial court and to point out that synopsis of petitioner as well as respondent is already on record.

Learned Senior Counsel for respondent relies upon decisions of Apex Court in D. Vinod Shivappa v. Nanda Belliappa (2006) 6 SC 456; V. Raja Kumari v. P. Subbarama Naidu and another AIR 2005 SC 109;

K. Bhaskaran v. Sankaran Vaidhyan Balan and Another (1999) 7 SCC

510; C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555 and Indo Automobiles v. Jai Durga Enterprises and Others (2008) 8 SCC 529 to contend that the issue raised in this petition of non-service of statutory notice, is to be determined at trial. It is also submitted on behalf of respondent that the Notice under Section 251 of Cr.P.C. has not yet been framed.

Whether statutory notice was served upon petitioner-accused or not, is question which pertains to realm of evidence and cannot be prejudged while exercising inherent jurisdiction of this Court under Section 482 of Cr.P.C. Since petitioner has an alternate and efficacious remedy to urge the pleas taken herein before trial court at the hearing on framing of Notice under Section 251 of Cr.P.C., this Court finds that inherent powers of this Court under Section 482 of the Cr.P.C. are not required to be invoked to quash the proceedings arising out of the complaints 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 (Supra), are as under:-

"17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge-sheet or complaint and consider the evidence to come to conclusion whether or not, commission of any offence is

disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code."

Further, on this aspect, the dictum of the Apex Court in Krishan Kumar Variar v. Share Shoppe (2010) 12 SCC 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 should file an application before the trial court making this averment and giving the relevant facts. Whether court has jurisdiction to try/entertain 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 suitable application for this purpose and the trial court should after hearing both the sides and recording evidence, if necessary, decide the question of jurisdiction 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 suitable application in this connection and, if such 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 of jurisdiction before further proceeding with the trial."

In view of authoritative pronouncement of the Apex Court in Bhushan Kumar & Krishan Kumar (supra) as referred to hereinabove and in view of the ground reality that this Court is being clogged by filing

of such petitions, it is the need of the hour to direct petitioner to approach the trial court, so that such petitioners instead of straightway rushing to this Court, ought to seek dropping of the proceedings by the trial court to ensure that summary trial in such like matters does not get unnecessarily delayed.

Interim order of 24[th] August, 2010 is vacated.

Petitioner is accordingly relegated to trial court to urge the pleas taken herein before trial court at the hearing on framing of Notice under Section 251 of Cr.P.C., and if it is so done, then trial court shall deal with the pleas raised herein by passing speaking and reasoned order. At the stage of framing of Notice under Section 251 of the Cr.P.C., trial court is not expected to function like 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. Taking note of afore-noted ground reality, Coordinate Bench of this Court in S.K. Bhalla Vs. State & ors. (2011) 180 DLT 219 has pertinently observed as under:-

‘Therefore, it is inherent in Section 251 of the Code of Criminal Procedure that when an accused appears before the Trial Court pursuant to summons issued under Section 204 CrPC in summons trial case, it is bounden duty of the trial court to carefully go through the allegations made in the charge sheet/ complaint and consider the evidence to come to conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and

ask him whether he pleads guilty otherwise, he is bound to discharge the accused.’

Needless to say, if trial court finds that no case is made out against petitioner, then Apex Court’s decision 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. 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 trial court decides to frame or not to frame Notice under Section 251 of Cr.P.C. against petitioner, personal appearance of petitioner be not insisted upon by trial court provided petitioner is represented by counsel, who does not seek adjournment. It is made clear if petitioner delays the proceedings before trial court, then the concession of exemption from personal appearance extended by this Court will not be available to petitioner. If trial court chooses to proceed against petitioner, then petitioner will have the remedy as available in the law.

This petition and the application are accordingly disposed of in aforesaid terms while refraining to comment upon merits, lest it may prejudice either side at the hearing on the framing of Notice under Section 251 of Cr.P.C.

DECEMBER 17, 2013

(SUNIL GAUR) JUDGE