Delhi High Court
Rainee Singh vs State & Anr. on 29 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 15th September, 2014
% Date of Decision: 29th September, 2014
+ CRL. M.C. 410/2012
RAINEE SINGH ..... Petitioner
Through: Mr. M. Sood and Mr. M. Singh,
Advocates.
versus
STATE & ANR. .....Respondents
Through: Mr. D. Hasija and Ms. S.B. Sakia,
Advocates.
+ CRL. M.C. 411/2012
RAINEE SINGH ..... Petitioner
Through: Mr. M. Sood and Mr. M. Singh,
Advocates.
versus
STATE & ANR. .....Respondents
Through: Mr. D. Hasija and Ms. S.B. Sakia,
Advocates.
+ CRL. M.C. 1076/2012
SARVJIT SINGH ..... Petitioner
Through: Mr. M. Sood and Mr. M. Singh,
Advocates.
versus
STATE & ANR. .....Respondents
Through: Mr. D. Hasija and Ms. S.B. Sakia,
Advocates.
Crl. M.C. Nos.410/2014, 411/2012 & 1076/2012 Page 1 of 7
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
JUDGMENT
1. These are three petitions filed under Section 482 of Code of
Criminal Procedure, 1973 (hereinafter after referred to as „Cr.P.C.‟)
read with Article 227 of Constitution of India impugning the order
dated 12.10.2010 passed by learned Metropolitan Magistrate, New
Delhi.
2. Since all these three petitions have arisen out of order dated
12.10.2007 and the question involved in all the petitions are similar,
therefore, all the petitions are being disposed of together by this
common order.
3. The concise facts giving rise to the present petitions are that
respondent No.2 had filed a complaint under Section 138 of Negotiable
Instruments Act, 1881 (for short, „NI Act‟) in respect of dishonour of
cheques in each complaint case. Despite service of notice, petitioners
had failed to make the payment of cheques. Thus, respondent No.2
had filed a complaint for the offence punishable under Sections
138/142 of NI Act against the petitioners. Vide impugned order dated
12.10.2010, learned trial court took cognizance and summoned the
petitioners. Feeling aggrieved by the said order, the petitioners have
preferred the present petitions.
4. Learned counsel for the petitioners contended that according to
the complainant, the petitioners had availed friendly loan against which
cheques were issued by way of security in favour of the complainant.
He also submitted that the cheques in question were issued in discharge
of any legally enforceable debt or other liability and, therefore, the
provisions of Section 138 of NI Act are not attracted. The other
submission of learned counsel for the petitioners are that the notice of
demand sent by respondent No.2 before filing the complaint was not
sent at the correct addresses. The notices were alleged to have been
sent by courier and in the absence of delivery receipts showing services
of notice upon the petitioners, the complaint is not maintainable.
5. Per contra, learned counsel for respondent No.2/ complainant
urged that the petitioners obtained friendly loan from respondent No.2/
complainant and issued the cheques towards repayment of said loan.
The said cheques were dishonoured and the respondent/ complainant
sent notice of demand to the correct address of the petitioners and the
petitioners had received the said notices but failed to make the payment
of amount of cheques in question.
6. I have given my thoughtful consideration to the submissions
made by learned counsel for the parties and perused the material on
record.
7. After taking into account the imperative facts of the instant case,
this Court is of the opinion that inherent powers of this Court under
Section 482 of Cr.P.C. are not required to be invoked to quash the
proceedings arising out of the complaints in question, in view of the
judgment of Hon‟ble Supreme Court of India in 'Bhushan Kumar &
Anr v State of (NCT of Delhi) & Anr' II(2012)DLT(CRL.)139(SC),
wherein it was observed that: -
"8. Under Section 190 of the code, it is the
application of judicial mind to the averments in the
complaint that constitutes cognizance. At this stage, the
Magistrate has to be satisfied whether there is sufficient
ground for proceeding and not whether there is
sufficient ground for conviction. Whether the evidence
is adequate for supporting the conviction can be
determined only at the trial and not at the stage of
inquiry. If there is sufficient ground for proceeding then
the Magistrate is empowered for issuance of process
under Section 204 of the Code.
9. A summon is a process issued by a Court calling
upon a person to appear before a Magistrate. It is used
for the purpose of notifying an individual of his legal
obligation to appear before the Magistrate as a response
to violation of law. In other words, the summons will
announce to the person to whom it is directed that a
legal proceeding has been started against that person
and the date and time on which the person must appear
in Court. A person who is summoned is legally bound
to appear before the Court on the given date and time.
Wilful disobedience is liable to be punished under
Section 174, IPC. It is a ground for contempt of Court.
xxxx xxxxx xxxxx
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."
8. In another case 'Constellation Enterprises Pvt. Ltd & Anr v.
P.E.C. Limited' 2006(127)DLT 733, this Court is of the view that:
"...Whatever defences are being raised in this court
should be raised before the trial court and this court
under Section 482 of the Code of Criminal Procedure
cannot examine the documentary and oral evidence
which may have to be led before the trial court and
which has to be tested by cross examination. It is
established law that this court under Section 482 of the
Code of Criminal Procedure can intervene only in
circumstances where there is manifest injustice on the
face of the record."
9. Further in case „Krishna Kumar Variar vs. Share Shoppe',
(2010) 2 SCC 485, it was laid down:-
"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.
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 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."
10. It is a 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 the accused or not. Section 251 Cr.P.C. deals with the stage
subsequent to issue of process under Section 204 Cr.P.C. in a summary
trial case. This Section casts a duty upon the Magistrate to state to the
accused person the particulars of offence allegedly committed by him
and asking him whether he pleads guilty. This can be done by the
Magistrate only if the complaint/preliminary evidence/charge-sheet
recorded during enquiry disclose commission of a punishable offence.
If the charge-sheet/complaint does not make out a triable offence, a
Magistrate cannot state the particulars of non-existing offence for the
accused is to be tried. Therefore, it is inherent in Section 251 Cr.P.C.
that when an accused appears before the trial court pursuant to
summons issued against under Section 204 Cr.P.C., the Magistrate is
required to go through the charge-sheet/complaint and arrive at 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.
11. Based on the aforesaid facts and the authoritative
pronouncement of the Apex Court and in view of ground reality that
this Court is being clogged by filing such petitions, it is the need of the
hour to direct the petitioners to approach trial court so that such
petitioners instead of straightway rushing to this Court ought to see
dropping of proceedings by the trial court to ensure that summary trial
in such like matters do not get unnecessarily delayed.
12. In view of the aforesaid observations, without entering into the
merits of the case, the petitioners are relegated to trial court to urge all
the pleas taken herein before learned trial court at the time of hearing
arguments under Section 251 Cr.P.C. In case, the petitioners raise the
pleas before the trial court, the trial court will consider the same in
accordance with law. The petitions are, thus, disposed of.
13. Since the complaints were filed in the year 2007, the trial court
is directed to expedite the trial.
14. Trial court record be sent back forthwith.
(VED PRAKASH VAISH)
JUDGE
SEPTEMBER 29th , 2014
hs
