TMI Blog2021 (10) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... an, Advocate for Respondent No. 2 JUDGMENT MANOJ KUMAR OHRI, J. 1. The petitioner has preferred the present petition under Section 482 Cr.P.C. assailing the order dated 14.08.2018 passed by the learned Metropolitan Magistrate-04, NI Act, South District, Saket Courts, New Delhi vide which the petitioner was declared an absconder. Additionally, the petitioner has also sought quashing of FIR No. 338/2018 and FIR No. 231/2019 both registered under Section 174A IPC at Police Station Hauz Khas, New Delhi. He also seeks setting aside of the order dated 15.02.2020, vide which his properties have been directed to be attached, and stay of the proceedings pending in FIR No. 338/2018 and FIR No. 231/2019. 2. The present case arises out of a complaint filed by respondent No. 2 under Section 138 N.I. Act read with Sections 141 and 142 N.I. Act and Section 420 IPC being Complaint Case No. 8416/2017 against the petitioner and others. On noting that the petitioner was stated to be an Authorized Signatory of the cheque in question and a Director in the accused Company, namely ABC Aviation Training Services (P) Ltd., cognizance was taken by the learned Metropolitan Magistrate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. 1[(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.] 1[(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).] 6. A plain reading of sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proclamation was duly published on a specified day in the manner specified in sub-clause (i) of Section 82(2) Cr.P.C. shall be conclusive evidence that the requirements of the Section have been complied with and that the proclamation was published on such day. 11. Sub-section (4) of Section 82 Cr.P.C. further provides that where a proclamation is published under sub-section (1) in respect of a person accused of offences specified therein and on failure of such a person to appear at a specified place and time, the Court after making such inquiry, as it thinks fit, pronounce such a person as proclaimed offender and make a declaration to that effect. Subsection (5) stipulates that the provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1). 12. Briefly stated, the facts discernible from the material placed on record are that the complainant/respondent No. 2 had preferred a complaint under Section 138 N.I. Act read with Sections 141 and 142 N.I. Act impleading the petitioner as one of the Directors of the accused company, and in pursuance, the petitioner was sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed him that the petitioner had left the premises 11 years ago. 17. After recording the statement of the process server to the aforesaid effect on 14.08.2018, the Trial Court once again, mechanically recorded its satisfaction on the Report of the process server Ct. Arjun Singh and declared the petitioner an Absconder . The Court also passed directions for initiation of proceedings under Section 174A IPC against the petitioner resulting in registration of FIR No. 338/2018 at Police Station Hauz Khas, Delhi on 10.12.2018. Apparently, the petitioner s misfortune continued and even a second FIR bearing No. 231/2019 was registered on 13.08.2019 for the same offence at the same police station on the basis of aforesaid directions. 18. At this stage, I deem it profitable to refer to the decision in Inder Mohan Goswami and Another v. State of Uttaranchal and Others reported as (2007) 12 SCC 1, wherein the Supreme Court cautioned the Courts to not issue bailable and non-bailable warrants without proper scrutiny. It was enunciated as under: Personal liberty and the interest of the State 50. Civilised countries have recognised that liberty is the most precious of all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealing with a complaint case under the N.I. Act, where it was opined that issuance of proclamation and attachment orders are exceptional remedies. While also taking note of the nonapplication of mind by the concerned Magistrate to the Report of the process server, the Court quashed the proceedings initiated under Sections 82/83 Cr.P.C. against the accused therein in the following terms:- 3. This apart, proclamation for any person absconding can be issued if the Court has the reasons to believe that the person against whom a warrant has been issued by it has absconded or is concealing himself and that warrant of arrest cannot be executed only then the Court is empowered to publish a written proclamation requiring him to appear to a specified date and time, within thirty days from the date of publication of such proclamation. The term absconding does not necessarily imply a change of place. The petitioner being a private limited company, the question of its absconding does not arise. The process of proclamation and attachment are exceptional remedies and should not be issued as a matter of course whenever the warrant is returned unexecuted. The non-conformance of Section 82(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant, the trial court did not issue fresh summons/warrants at the new address of the petitioner; (b) Without awaiting the report on the execution of bailable warrant, the Trial Court issued non-bailable warrants against the petitioner; in fact, both were made returnable on the same date, i.e. 11.01.2018; (c) The Report of the Process server had revealed that on enquiry it was found that the petitioner had left the last known address about 8-10 years ago, and yet the Trial Court did not take steps in terms of sub-clause (ii) of Section 82(2) Cr.P.C. and (d) The Trial Court directed attachment of properties of the petitioner vide order dated 15.02.2020, without having exhausted all the processes outlined in Section 82 Cr.P.C. to secure his presence before passing of the order. 23. On a specific query, learned APP for the State has replied that the second FIR was inadvertently registered as the impugned order was received twice in the concerned Police Station. 24. On a careful reading of the material placed on record and in view of the above discussion, it is apparent that the impugned orders suffer from the vice of non-application of mind and deserve to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
