Pawan Kuamr v. Sudha Singhal & Anr

ORDER

16.07.2013 In the above captioned two petitions, petitioner has been summoned as an accused vide common impugned order of 6j'^ September,2010 in two complaintsunder Section 138 of The Negotiable Instruments Act, 1881 pertaining to cheques amount of ?2,00,000/- and ?1,00,000/- respectively. Since petitioners counsel have .addressed Crl M.C. No.2695/2013 Crl M.C. No.2708/2013 Page 1 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. identical arguments in the above captioned two petitions, therefore, these two petitions are being disposed of by this common order. Alleging that the necessary ingredient of there-being an existing 'debt and liability' is lacking in the two complaints in question. Quashing of both these complaints under Section 138 of The Negotiable Instruments Act, 1881 and the impugned order is sought by petitioner. Learned counsel for petitioner submitted that loan was advanced by complainant to petitioner in the year 2004 whereas the cheque in question was issued in the year 2009 and the said loan was repayable within one or two years. According to petitioner's counsel, a complaint was made regarding the loss of cheques in September, 2009 and petitioner's bank account stood closed in the year 2006 and there was no occasion for petitioner to issue the two cheques in question. During the course of hearing, attention of this Court is drawn to the cross-examination of complainant to point out that the complainant could not even understand the meaning of legal liability and so, his deposition does not even prima facie establish the case set out in these two complaints. In this petition, Annexure-XI reveals that the statement of petitioner under Section 313 r/w Section 281 Cr.P.C. has been recorded. Reliance placed by counsel for petitioner upon decision of Apex Court in 'A. V. Murthy Vs. B.S. Nagabasavanna'

(2002) 2 SCC 642 is misplaced, as it is on distinguishable facts. Another decision in Krishna Kumar Cariar Vs. Share Shoppe (2010) 12 SCC 485 rehed upon by counsel for petitioner is of no help to the case of petitioner as this petition had come up before the Apex Court for consideration after contesting on merits. Upon hearing and bare perusal of the impugned order, the two Crl M.C. No.2695/2013 Page 2 Crl M.C. No.2708/2013 complaints in question, deposition of complainant and statement of petitioner made before the trial court, I find that this is not a fit case to invoke Section 482 Cr.P.C. to dwell into disputed question of fact, as even alreadyrecordedby the trialcourt,atthis belatedstage,this Courtis not inclinedto entertainthis petition. In view of dictum of Apex Court in Krishna Kumar Cariar Vs. Share Shoppe (2010) 12 SCC 485, which reads as under:- "In such cases where the accused or any other person raised an objectionthat the trial courthas nojurisdictionin the matter, the said person shouldfile and applicationbefore the trial court makingthis avermentandgiving the relevantfacts. Whethera court hasjurisdiction to try/ entertaina case will, at least inpart, dependupon thefacts of the case. Hence, instead ofrushingto the highercourtagainstthe summoningorder, the person concerned should approach the trial court with a suitable applicationfor thispurpose and the trial court should after hearing both the sides and recording evidence, if necessary,decidethe questionofjurisdictionbeforeproceeding further with the case. " Since these two petitions have been filed belatedly and require adjudicationon disputedquestionof facts, therefore,these two petitions are notentertainedand are dismissedwhilenotcommentingonthe merits of this case, lest it may prejudicepetitionerat trial. Boththepetitionsand theapplicationsare accordinglydisposedof JULY 16, 2013 r (SUNIL GAUR) JUDGE Crl. M.C. No.2695/2013 Page 3 CrI. M.C. No.2708/2013

<• $-14 & 19 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 2695/2013 & Crl. M.A. No. 10337-38/2013 PAWAN KUMAR Petitioner Through: Mr. Deepak Sabharwal,Advocate versus B L SINGHAL & ANR. Through: Respondents Mr, Mukesh Gupta, Additional Public Prosecutor for respondent- No. 1- State + CRL.M.C. 2708/2013 & Crl. M.A. No. 10371-72/2013 PAWAN KUMAR Petitioner Through: Mr. Deepak Sabharwal, Advocate % versus SUDHASINGHAL& ANR. Respondents Through: Mr. Mukesh Gupta,Additional Public Prosecutor for respondent- No. 1- State CORAM; HON'BLE MR. JUSTICE SUNIL GAUR