Delhi District Court
Renu Kalra vs Prakash Chand Aggarwal on 24 January, 2020
1
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN:
ADDL. SESSIONS JUDGE : (CENTRAL DISTRICT):
TIS HAZARI COURT:DELHI
Crl. Rev. No. 458/2019
Date of institution: 27.07.2019 Decided on: 24.01.2020
In the matter of :
Renu Kalra
W/o Sh.Sunil Kalra,
R/o 10C, Under Hill Road,
Civil Lines,
Delhi110054.
....Petitioner
Versus
Prakash Chand Aggarwal
S/o Late Hari Dass Aggarwal,
2704, Sadar Thana Road,
Delhi110006.
....Respondent
JUDGMENT
The petitioner has filed the present revision petition challenging the order dated 04.06.2019 passed by the court of CR. No.458/19 Renu Kalra vs. Prakash Chand Aggarwal Page 1 2 Sh.Gaurav Sharma, Ld. M.M. (NI Act)03, Central Distt., Tis Hazari Courts Delhi in CC No.523010/16 titled as "Prakash Chand Aggarwal vs. Victoria Manufacturing & Packaging Co. Pvt. Ltd." vide which the petitioner was declared as proclaimed person and SHO was directed to lodge a complaint/FIR under Section 174A of IPC against the petitioner.
2. Ld. Counsel for the petitioner contends that one complaint case u/s 138 of Negotiable Instruments Act, 1881 against the petitioner and her firm was filed in respect of dishonoured cheques purportedly issued by the petitioner in discharge of lawful outstanding liability and by the order dated 6.2.2013, the petitioner was summoned to appear before the Ld. Trial Court in the said complaint case in pursuance to which petitioner put in appearance on 3.7.2013. Ld. Counsel submits that the petitioner has been regularly appearing till 15.3.2017 except on 06.05.2014, 26.07.2014, 06.04.2015, 28.03.2016, 05.10.2016 and 16.07.2017 when exemption was granted from personal presence to the petitioner. That till 15.3.2017, out of a total of 21 hearing, the petitioner has duly attended 16 hearings and on five occasions was granted exemption. That on 6.5.2017, CR. No.458/19 Renu Kalra vs. Prakash Chand Aggarwal Page 2 3 petitioner was diagnosed with several medical problems and was admitted at Sir Ganga Hospital and undergone two surgeries on 7.8.17 and 17.9.17. Petitioner being a senior citizen was also suffering from other old age related problems and therefore, could not appear in court but was properly represented by her Counsel on 27.5.17, 9.10.17 and 27.3.2018. That on 19.9.18 due to knee fracture she had undergone medical treatment at Sir Ganga Ram hospital which continued till 28.11.2019. Therefore, the petitioner could not appear before Ld. Trial Court on 27.9.2018 and 17.11.2018. That on 17.11.2018, the Ld. Trial court was pleased to issue NBWs and process u/s 82 Cr.P.C and the next date of hearing in the matter came to be fixed for 28.02.2019. On 19.12.2018, petitioner filed an application for recall of process u/s 82 Cr.P.C and cancellation of NBWs which came up for hearing on 11.01.2019, 23.01.2019, 30.01.2019 and 06.02.2019 as the petitioner was recovering from left knee problem and also suffered from UTI Infection and therefore, proceedings u/s 82 Cr.P.C were continued and notice was issued to the Process Server for recording his statement on 24.04.2019. That on 24.04.2019, again the petitioner filed application for recall of the process u/s CR. No.458/19 Renu Kalra vs. Prakash Chand Aggarwal Page 3 4 82 Cr.P.C and cancellation of NBWs on medical ground which was dismissed. Against order dated 24.4.19, revision petition was preferred and on 4.6.2019, the Ld. Trial court declared the petitioner as a Proclaimed Offender and directed the SHO to lodge a complaint u/s 174 (A) IPC. That the accused cannot be declared as a Proclaimed Offender as in terms of Section 82 sub section 4 Cr.P.C only where the proclamation is published in respect of a person, accused of the offences specified therein and such person fails to appear, he may be declared as a proclaimed offender.
3. A perusal of the order impugned however would show that the petitioner has been declared as a proclaimed person for nonappearance despite due execution of the process u/s 82 Cr.P.C. No error, defect, irregularity or infirmity in the proclamation or the publication thereof, has been pointed out before me. The petitioner having notice of the proclamation failed to appear before the Ld. Trial court on the date at the place mentioned in the proclamation and has thereby been declared as a "proclaimed person", the Ld. Trial Court being mindful of the requirement of law that the declaration of an CR. No.458/19 Renu Kalra vs. Prakash Chand Aggarwal Page 4 5 accused as a proclaimed offender can alone be made where the proclamation is in respect of a person, accused of the offences punishable under Section 302, 304, 364, 367, 382, 392, 393, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 IPC. In the absence of any defect in the proclamation and in the wake of the admitted position that despite knowledge of the proclamation, the accused failed to appear in terms thereof before the Ld. Trial Court and as the impugned order declares the accused as the proclaimed person, there is no error infirmity or illegality in the impugned order so far as the accused petitioner is declared as a proclaimed person.
4. Ld. Counsel for the petitioner vehemently contended that directions to the SHO to lodge complaint against the petitioner u/s 174A IPC could not have been passed as the petitioner being tried for commission of offence punishable u/s 138 NI Act is not a person capable of being declared as a Proclaimed Offender.
Section 174A IPC is reproduced hereunder for ready reference : 174A. Noneappearance in response to a CR. No.458/19 Renu Kalra vs. Prakash Chand Aggarwal Page 5 6 proclamation under section 82 of Act 2 of 1974.-Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under subsection (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
Section 174A IPC is found to comprise of two parts essentially. The first part evinces punitive action where the accused fails to appear in terms of the proclamation, it is only second part of Section 174A that is attracted in the event of an accused having been declared as a proclaimed offender.
The petitioner having been declared as proclaimed CR. No.458/19 Renu Kalra vs. Prakash Chand Aggarwal Page 6 7 person and the petitioner having failed to have appeared in pursuance to the proclamation published and process executed in terms of Section 82 Cr.P.C at the date, time and place mentioned therein, there is no bar for the initiation of proceedings u/s 174A IPC against her, though the second part, the aggravated penal consequence may not be capable of being invoked. The first part is independent of the second part and the proceedings under the first part are capable of being initiated even in respect of a proclaimed person. In the facts and circumstances, therefore, no ground is made out to interfere with the order impugned. Revision petition is accordingly dismissed.
Trial Court Record be returned with Copy of Judgment. File of revision petition be consigned to record room. Announced in the open Court on this 24th day of January 2020 (Neelofer Abida Perveen) Addl. Sessions Judge : (Central) Tis Hazari Courts, Delhi CR. No.458/19 Renu Kalra vs. Prakash Chand Aggarwal Page 7