Delhi High Court
Aman Kumar Harjai vs State & Anr. on 15 January, 2015
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: January 15, 2015
+ CRL.M.C. 240/2012 & Crl.M.A.869/2012
AMAN KUMAR HARJAI ..... Petitioner
Through: Mr. Maninder Singh, Ms. Ekta
Vats, Mr. Jagmeet Randhawa &
Mr. Prateek Sisodia, Advocates
versus
STATE & ANR. ..... Respondents
Through: Ms. Nishi Jain, Additional Public
Prosecutor for State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Quashing of criminal complaint CC No. 121/01/2006, under
Section 138 of The Negotiable Instruments Act, 1881 titled as Vishesh
Infotecnics Ltd. Vs. Aman Harjai & ors. and the summoning order of 18th
February, 2006 is sought on merits in this petition.
At the hearing, it was submitted by learned counsel for petitioner
that petitioner is neither proprietor, director, managing partner nor
employee or authorized signatory of the accused-company and has never
dealt with the accused-company in any manner. Learned counsel for
petitioner submitted that there is no averment against the petitioner in the
complaint in question and therefore, summoning order of 18 th February,
2006 is unwarranted and deserves to be quashed. It is submitted by
Crl. M.C.No.240/2012 Page 1
learned counsel for petitioner that Notice under Section 251 of the
Cr.P.C. has not yet been framed in this case and matter is now coming up
for hearing on 13th April, 2015 before the trial court and petitioner be
permitted to appear through counsel in this case.
Since petitioner has an alternate and efficacious remedy available
to him to urge the pleas taken herein before trial court at 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."
Crl. M.C.No.240/2012 Page 2
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
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,) as referred to hereinabove,
inherent powers of this Court under Section 482 of the Cr.P.C. are not
exercised at this stage and so, petitioner is 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
Crl. M.C.No.240/2012 Page 3
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
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 petitioner, then 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 petitioner and if trial court
chooses to proceed against petitioner, then petitioner 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 on every hearing and does
not seek adjournment;
b. that petitioner shall not dispute their identity as accused in the
Crl. M.C.No.240/2012 Page 4
case;
c. that the petitioner shall appear in person in case they are
directed to do so in future; and
d. that petitioner shall not raise the question of prejudice in future.
It is made clear that if petitioner delays the proceedings before the
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
JANUARY 15, 2015
r
Crl. M.C.No.240/2012 Page 5
