Rajeev Ranjan Sinha vs Sushil Kumar Saxena

V.P. Vaish, J.—By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 the petitioner seeks quashing of impugned order dated 21.07.2012 passed by learned Metropolitan Magistrate, Patiala House Courts, New Delhi whereby the petitioner was summoned for the offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 in Complaint Case No. 323/1/2012 titled as ''Sushil Kumar Saxena vs. M/s. Dream Scan Pvt. Ltd.''. Learned counsel for the petitioner submits that the cheque in question was not issued towards any debt or liability and the complainant had used stolen cheque. The petitioner had resigned on 27.01.2012. According to learned counsel for the petitioner, the provisions of Section 138/ 142 of the Negotiable Instruments Act are not attracted.

Learned counsel for both the parties has informed that notice under Section 251 of the Cr.P.C. in the complaint has not been given and hearing on framing of notice is yet to take place.

After hearing learned counsel for both the parties and upon perusal of record, this Court is of the opinion that inherent power 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 complaint in question, in view of the dictum of the Apex Court in Bhushan Kumar and Another Vs. State (NCT of Delhi) and Another, , the relevant para. 20 of the judgment reads as under:--

"20. 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 a 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 a 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 as per Section 239 of the Code."

Further, in another case Krishna Kumar Variar Vs. Share Shoppe, it was observed:-

"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 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 of jurisdiction before proceeding further with the case.

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, 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 the authoritative pronouncement of the Apex Court in Bhushan Kumar''s case (supra) and Krishna Kumar Variar''s case (supra), and in view of the ground reality that this Court is being clogged by filing such petitions, it is the need of the hour to direct the petitioner to approach trial Court, so that such petitioners instead of straightaway rushing 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.

Accordingly, the petitioner is relegated to trial Court to urge all the pleas taken herein before learned trial Court at the time of hearing on notice under Section 251 of Cr.P.C. In case the petitioner raises the pleas before the trial Court, the trial Court shall consider the same in accordance with law and pass a speaking order. It is settled law that the trial Court is not expected to function like post office and to mechanically frame notice, but is bound by law to apply its mind to find out whether prima facie case is made out against accused or not.

Needless to say if trial Court finds that no case is made out against the petitioner, then Apex Court decision in Adalat Prasad Vs. Rooplal Jindal and Others, will not stand in the way of the petitioner.

Till the trial Court passes an order regarding framing of notice under Section 251 Cr.P.C. personal appearance of the petitioner be not insisted upon subject to the condition that the petitioner is duly represented by counsel who does not seek adjournment.

The petition is disposed of accordingly.

Crl. M.A. No. 1658/2013

The application is dismissed as infructuous.