Allahabad High Court
Shiv Kumar Tiwari vs State Of U.P. And Another on 4 November, 2015
Bench: Om Prakash-Vii
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Judgment Reserved on 28.10.2015
Judgment Delivered on 4.11.2015
Case :- APPLICATION U/S 482 No. - 30733 of 2015
Applicant :- Shiv Kumar Tiwari
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Arvind Agarwal
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Om Prakash-VII,J.
This application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the impugned order dated 16.9.2015 passed by the Special Judicial Magistrate, Firozabad in compliant case no. 24 of 2015 under Section 138 Negotiable Instrument Act, police station Shikohabad, District - Firozabad. Further, prayer has been made to stay the further proceedings of the aforesaid complainant case.
It appears that a complaint case no. 2070 of 2014, which was re-numbered as complaint case no. 24 of 2015, was filed by the opposite party no. 2 against the applicant under Section 138 Negotiable Instrument Act alleging that the cheques dated 29.6.2014 of Rs. Two Lakhs issued by the applicant was of the State Bank of India, Badshahpur, Gurgaon, Haryana and the same was presented at Bank of India, Shikohabad Branch, Firozabad, which was dishonoured on 2.7.2014. Applicant was summoned on 9.6.2015. Evidence in the matter was recorded. The applicant moved an application / objection before the court below that the Court at Firozabad has no jurisdiction to decide the aforesaid complaint case and the same be transferred to the competent court at Gurgaon where the cause of action arose. The Magistrate concerned passed the impugned order rejecting the prayer and fixed 29.9.2015 as next date for examination of accused under Section 313 Cr.P.C., hence this application.
Heard Shri Arvind Agarwal, learned counsel for the applicant as well as Shri Zafeer Ahmad, learned AGA appearing for the State and perused the entire record.
It was submitted by the learned counsel for the applicant that the application was moved before the court below to the effect that the cheque in question was drawn at State Bank of India, Badshahpur, Gurgaon, Haryana, therefore, the Court bellow at Firozabad has no jurisdiction to try the case. The Court below has illegally rejected the application moved by the applicant. It was further submitted that in view of the law laid down by the Hon'ble Supreme Court in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra, (2014) 9 SCC 129, territorial jurisdiction of the Court in the present matter is at Gurgaon district. It was further submitted that merely on the basis that some evidence has been recorded in the matter at Firozabad, objection raised by the applicant cannot be rejected.
On the other hand, learned AGA appearing for the State has submitted that proceeding has commenced in the matter. Order dated 16.9.2015 itself indicates that stage for recording the statement of the accused applicant under Section 313 Cr.P.C. has reached, therefore, the matter is preserved itself in the judgment of the Apex Court in Dashrath Rupsingh Rathod case (supra). The impugned order does not suffer from infirmity or illegality warranting interference of this Court.
I have considered the submissions made by the learned counsel for the parties and gone through the entire record including the case laws.
The Hon'ble Supreme Court in paragraph nos. 5 and 6 of Ultra Tech Cement Ltd. vs. Rakesh Kumar Singh, decided on 24th April, 2015 (Criminal Appeal No. 717 of 2015, arising out of SLP (Cri) No. 8540 of 2013), has held as under:
"5. On a perusal of the conclusions drawn in paragraph 22, extracted hereinabove, we feel that the proceedings initiated prior to the rendering of the judgment in Dashrath Rupsingh Rathod's case (supra) on 01.08.2014, will be preserved at the place they were filed, only when "post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in Section 145(2) of the Negotiable Instruments Act, 1881". In order to further explain its intent, the judgment clarifies, that merely leading of evidence at the pre-summoning stage, either by way of affidavit or by oral statement will not exclude applicability of the judgment in Dashrath Rupsingh Rathod's case (supra). The above judgment, thereby seeks to confirm the position, that only when recording of evidence at the post-summoning stage had commenced, before 01.08.2014 (the date on which the judgment in Dashrath Rupsingh Rathod's case was pronounced), such proceedings would not be dislodged, the declaration of law, on the subject of jurisdiction, in Dashrath Rupsingh Rathod's case (supra).
6. Having given our thoughtful consideration to the dispute in hand, and having examined the orders placed on the record of this case collectively as Annexure P-5, we are of the view that the appellant recorded its statement at the pre-summoning stage by filing an affidavit on 16.02.2007. Consequent upon the filing of the aforesaid affidavit, the summons were issued to the accused-respondent No.1 for 21.04.2007. On 21.07.2008, the accused was examined under Section 251 of the Code of Criminal Procedure, and the substance of the allegations were read over to him, whereupon, the accused having pleaded not guilty, the matter was adjourned for recording evidence on 31.12.2008. On 22.04.2009, the appellant filed an affidavit to be treated as the statement-in-chief of PW- 1, whereupon, PW-1 was to be cross-examined. The Metropolitan Magistrate, 11th Court, Calcutta, then posted the matter for 22.07.2009 for the cross- examination of PW-1. The date for the cross-examination of PW-1 was first adjourned to 15.12.2009 and thereafter successively to 25.05.2010, 21.09.2010, 25.07.2011 and finally to 09.12.2011."
If the dictum of the Apex Court passed in Ultra Tech Cement Ltd. case (supra) and Dashrath Rupsingh Rathod case (supra) are taken into consideration in consonance with the submissions made by the learned counsel for the parties and the observations recorded by the court below in the order dated 16.9.2015, it is evident that in the present case, trial has reached at the stage of recording the statement of the accused applicant under Section 313 Cr.P.C.. It means the evidence at the post-summoning stage had commenced. Hence, the present matter is preserved from Dashrath Rupsingh Rathore case (supra) itself as has been held in Ultra Tech Cement Ltd. Case (supra).
Thus, on the basis of above settled legal position and the discussions made, I am of the opinion that no interference is called for with the impugned order. There is no infirmity or illegality in the said order. The application being devoid of merits is liable to be dismissed and it is accordingly dismissed.
Order date : 04.11.2015
safi
