Delhi High Court
Yashveer Kumar Anand vs R.L.Anand (Lr Of Sarla Anand) on 11 May, 2015
Author: Sunil Gaur
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: May 11, 2015
+ CRL.M.C. 4213/2014 & Crl.M.A.14568/2014
YASHVEER KUMAR ANAND ..... Petitioner
Through: Mr. Rajiv Ranjan Mishra,
Advocate (Proxy) with petitioner
in person
versus
R.L. ANAND (LR OF SARLA ANAND) .....Respondent
Through: Mr. Rishabh Bansal, Advocate
(Proxy)
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Lawyers are abstaining from work today.
Quashing of Criminal Complaint No.837/2013, under Section 138
of The Negotiable Instruments Act, 1881 titled Smt. Sarla Anand v.
Yashveer Kumar Anand and the summoning order of 4th April, 2014 is
sought on merits in this petition.
Petitioner appears in person and submits that vide order of 9 th
March, 2015 respondent's complaint has been returned for want of
territorial jurisdiction and the same would be presented in the court of
competent territorial jurisdiction and petitioner has been now summoned
for 2nd June, 2015. Petitioner further submits that he would appear before
the trial court on 2nd June, 2015 and he be given liberty to urge the pleas
CRL.M.C. 4213/2014 Page 1
taken herein before the trial court.
Certified copy of order of 9th March, 2015 has not been placed on
record. However, true typed internet copy of order of 7 th April, 2015
summoning petitioner for appearance on 2nd June, 2015 has been placed
on record today in the Court. It was further disclosed by learned counsel
for petitioner that Notice under Section 251 of Cr.P.C..
At the outset, it is made clear that learned counsel for petitioner has
not been heard on merits. 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
CRL.M.C. 4213/2014 Page 2
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
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
CRL.M.C. 4213/2014 Page 3
exercised and 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 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 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 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
CRL.M.C. 4213/2014 Page 4
shall appear on behalf of petitioner on every hearing and will
not seek adjournment;
b. that petitioner shall not dispute his identity as accused in the
case;
c. that the petitioner shall appear in person as and when directed
in future to do so; 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.
(SUNIL GAUR)
JUDGE
MAY 11, 2015
s
CRL.M.C. 4213/2014 Page 5
