Delhi High Court
Shreshth Mani vs Color Style P. Ltd on 28 August, 2015
Author: Sunil Gaur
I- 29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 28, 2015
+ CRL.M.C. 3506/2015 & Crl.M.A.No. 12517-518/2015
SHRESHTH MANI ..... Petitioner
Through: Mr. Rakesh Kumar, Advocate
versus
COLOR N STYLE P.LTD. ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
In this petition, quashing of impugned summoning order of 7th
April, 2015 in a criminal complaint titled Color N. Style Vs. Promotional
Club, under Section 138 of The Negotiable Instruments Act, 1881 is
sought on merits.
At the hearing, learned senior counsel for petitioner submits that no
case for summoning of petitioners in the aforesaid complaint in question
is made out. Learned counsel for petitioner discloses that Notice under
Section 251 of Cr.P.C. has not yet been framed and that matter is now
coming up on 2nd September, 2015 before the trial court.
At the outset, it is made clear that learned counsel for petitioner has
not been heard on merits, as petitioner has an alternate and efficacious
remedy available to him to urge the pleas taken herein before trial court at
Crl.M.C.No. 3506/2015 Page 1
the time of framing of Notice under Section 251 of Cr.P.C. Therefore,
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 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
(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 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 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 a court has jurisdiction to
Crl.M.C.No. 3506/2015 Page 2
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."
In view of authoritative pronouncement of the Apex Court in
Bhushan Kumar & Krishan Kumar (supra) and applying it to the facts of
this case, inherent powers of this Court under Section 482 of the Cr.P.C.
are not exercised and petitioners are relegated to urge the pleas taken
herein before the trial court at the hearing on the point of 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 a speaking and reasoned
order. At the stage of framing of Notice under Section 251 of 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
Crl.M.C.No. 3506/2015 Page 3
Court in S.K. Bhalla V. State and Others 180 (2011) DLT 219.
Needless to say, if the trial court finds that no case is made out
against petitioners, then the decision of the Apex Court's 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 petitioners and if
trial court chooses to proceed against petitioners, then petitioners 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 of 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 of Cr.P.C. alongwith his
affidavit with the following undertaking: -
a. 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(s) on every hearing and will
not seek adjournment;
b. that petitioner(s) shall not dispute their identity as accused in
the case;
c. that the petitioner(s) shall appear in person as and when
directed in future to do so; and
d. that petitioner(s) shall not raise the question of prejudice in
future.
It is made clear that if petitioner delays the proceedings before the
Crl.M.C.No. 3506/2015 Page 4
trial court, then petitioner will not have the benefit of exemption from
personal appearance extended by this Court.
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.
Dasti.
(SUNIL GAUR)
JUDGE
August 28, 2015
r
Crl.M.C.No. 3506/2015 Page 5
