RAKESH SHARMA Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) The petitioner-accused feeling aggrieved by the order dated 7th December, 2010 of the learned Metropolitan Magistrate whereby the petitioner's application for returning the criminal complaint filed against him by the respondent no. 2 herein under Section 138 of the Negotiable Instruments Act, 1881 ('the Act of 1881' in short) because of lack of territorial jurisdiction to entertain the same was dismissed filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of that complaint. The brief facts of the case are that the learned Magistrate after taking cognizance of the offence under Section 138 of the Act of 1881 summoned the petitioner to appear in Court as an accused in the complaint case and on receipt of the summons the petitioner-accused moved an application claiming therein that Delhi Courts had no territorial jurisdiction in the matter. However, that application was dismissed vide order dated 7th December, 2010 by the learned Magistrate without going into the merits of the objection regarding jurisdiction of Delhi Courts by observing that "........this Court has no inherent power to recall or review its orders. Hence, the aforesaid application is not maintainable and the same is dismissed". For taking this view the trial Court relied upon the decision of the Supreme Court in Adalat Prasad's case reported as : (2004) 7 SCC 338 and one decision of this Court reported as 160 (2009) DLT 379.

(2.) The petitioner-accused then approached this Court. respondent no. 2 complainant appeared in the matter and filed its reply but its counsel did not appear in the matter on the date of hearing. So, the counsel for the petitioner was heard since the State had been impleaded only as a pro-forma party.

(3.) Though in this petition the prayer made was for quashing of the complaint by this Court in view of the helplessness expressed by the trial Court because of the judgment of the Supreme Court in Adalat Prasad's case but during the course of hearing of this petition the learned counsel for the petitioner-accused had submitted that all that he was now praying to this Court was to direct the trial Court to take some decision on merits in respect of the objection about the territorial jurisdiction raised by the petitioner. Learned counsel also submitted that this objection could be decided and allowed on the basis of averments made in the complaint itself and if the matter is remanded back the petitioner shall not rely on any other material or evidence except the averments in the complaint to satisfy the trial Court that Delhi Courts have no territorial jurisdiction in the matter and further that the view taken by the learned Magistrate while dismissing the petitioner's application is not the correct view in law since the petitioner was not asking for re-calling any earlier order of the trial Court.