Jammu & Kashmir High Court
Shashi Sharma vs Rakesh Goel on 14 September, 2018
Equivalent citations: AIRONLINE 2018 J AND K 167
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No. 308/2018, IA No. 01/2018
Date of order: 14.09.2018
Shashi Sharma Vs. Rakesh Goel
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Petitioner(s) : Mr. S. C. Subhash, Advocate
For the Respondent(s): Mr. Vishal Abrol, Advocate
i. Whether approved for
reporting in Press/Media : Yes/No/
ii. Whether to be reported in
Digest/Journal : Yes/No
1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) petitioner seeks quashing of the order dated 24th January, 2018 passed by the Judicial Magistrate 1st Class (Sub-Registrar) Jammu.
2. The facts as revealed from the file are that petitioner is accused in a complaint under Section 138 of the Negotiable Instruments Act and he has been attending the Court regularly. It is stated that on 6 th January, 2018, by mistake presence of the petitioner could not be recorded in the file and the case was adjourned to 15th January, 2018 with the direction for notice to the Surety. On 15.01.2018 the petitioner was held up in a traffic jam and reached in the Court late and by that time case had been called and when he inquired about the same, he was informed that file is with the learned Magistrate and the case was adjourned to a distant date. The next day, petitioner came to know that he was recorded absent in the CRMC No. 308/2018 Page 1 file and the bail bond and the personal bond have been forfeited. The petitioner immediately moved an application for explaining the reason why he could not attend the Court with a prayer for cancellation of his warrant and grant of bail, but the learned Magistrate refused to consider the same and directed him to first deposit the amount of bail and the personal bond. The petitioner deposited Rs. 6,000/-, on account of bail bond and Rs. 3000/- on account of personal bond and only then he was admitted to bail. The learned Magistrate insisted that the counsel for the petitioner should stand surety for him. The counsel for the petitioner, accordingly, stood surety and thereafter, learned Magistrate relented and allowed him the liberty of bail.
3. Learned counsel for the petitioner states that after notice to the surety as directed by the order dated 06.01.2018, the learned Magistrate ought to have waited for service of the same and appearance of the former and ultimately after hearing him passed appropriate order in the robkar against him. The petitioner could not have been in law compelled on the threat of incarceration to deposit the amount on the bail bond in the robkar against the surety, nor could he be forced to deposit any amount on the personal bail bond without following the procedure of law. It is stated that petitioner was not given an opportunity of hearing and therefore, the direction to deposit the said amount on personal bond or on bail bonds, suffers from violation of principal of natural justice.
4. In support of his contention learned counsel for the petitioner relies upon a decision of the Hon'ble Supreme Court reported in 1960 AIR (SC) 1185 titled Ghulam Mehdi vs State of Rajasthan.
5. I have considered the contentions. From the bare perusal of order impugned, it is evident that the bail bond of petitioner/accused to the tune of Rs.10,000/- were forfeited due to his continuous absence during trial before Court below and proceeding under section 514 Cr.P.C were initiated; he then appeared before Court below on 24.01.2018 and Court CRMC No. 308/2018 Page 2 directed the accused to furnish fresh bail bonds, which he furnished and also deposited Rs.3000-/ each as penalty towards his personal bond and surety bond against its forfeiture.
6. So accused has already complied with the direction of Court below by depositing the amount as penalty towards forfeiture of bonds. The main case/complaint has already been finalized and petitioner has been convicted, by the Trial Court. Even his fresh bail bonds have been forfeited, because he remained absent on the date of judgment. The law cited is not applicable, because facts are distinguishable. Further, it is accused/petitioner, who himself, asked for deposit of less amount as penalty. Court below has exercised the discretion by decreasing the penalty amount from Rs.10,000/- to Rs.3000/-, to which accused agreed. Once accused has agreed to deposit the penalty, he cannot agitate the matter by saying that wrong procedure has been adopted by Magistrate, that too after he has been convicted in the main offence. Further, all the orders passed by Magistrate under Section 514 Cr.P.C are appealable; petitioner without exhausting statutory remedy has filed present petition.
7. In view of above, I do not find any illegality in order impugned. This petition is dismissed.
(Sanjay Kumar Gupta) Judge Jammu, 14.09.2018 *Bir* CRMC No. 308/2018 Page 3