Karnataka High Court
The Managing Director vs Ameen S/O Ibrahim Sayyed on 2 September, 2022
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CRL.P No. 101505 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL PETITION NO. 101505 OF 2019 (482-)
BETWEEN:
THE MANAGING DIRECTOR,
REITAR SAHAKARI SAKKARE KARKHANE NIYAMIT,
RANNANAGAR, TIMMAPUR,TQ: MUDHOL,
DIST: BAGALKOTE,
REP. BY MALLIKARJUN S/O DODDANAIK MALLUR,
AGE: 55 YEARS, OCC: MANAGING DIRECTOR,
R/O: RANNANAGAR, TIMMAPUR, TQ: MUDHOL,
DIST: BAGALKOTE.
...COMPLAINANT/PETITIONER
(BY SRI. SRINIVAS B NAIK.,ADVOCATE)
AND:
AMEEN S/O IBRAHIM SAYYED
AGE: MAJOR, OCC: CONTRACTOR,
R/O: AT POST: NITRUD,
TQ: MAJALAGAON, DIST: BEED,
STATE MAHARASHTRA-431122.
...ACCUSED/RESPONDENT
(NOTICE TO RESPONDENT IS DISPENSED WITH)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASH THE ORDER OF REJECTION OF APPLICATION
UNDER SECTION 82 OF CR.P.C. AND STOPPING OF PROCEEDINGS
U/S 258 OF CR.P.C., DATED 12.04.2019 IN C.C.NO.34/2016 ON
THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & JMFC COURT,
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CRL.P No. 101505 of 2019
MUDHOL, REGISTERED FOR THE OFFENCES P/U/S 138 OF NI ACT
AND RESTORE THE COMPLAINT ON ITS FILE.
THIS PETITION COMING ON FOR ORDER THIS DAY, THE
COURT MADE THE FOLLOWING.
ORDER
For the sake of convenience, parties are referred to by their rank before the Trial Court.
2. The appellant, who is the complainant in C.C.No.34/2016 on the file of the Additional Senior Civil Judge and JMFC, Mudhol, filed a private complaint under section 200 of Cr.P.C., for the offence punishable under section 138 of the Negotiable Instruments Act, 1881, ("N.I. Act" for short) against the respondent/accused contending that it is a registered company manufacturing crystal sugar. During harvesting season, labourers are employed for harvesting sugarcane grown in the cultivators land. The complainant has alleged that the accused offered to supply labourers for harvesting sugarcane and complainant-company paid Rs.14,00,000/-, Rs.11,50,000/-, Rs.11,50,000/- and Rs.6,520/- i.e. in all -3- CRL.P No. 101505 of 2019 Rs.37,06,520/- to the complainant by way of advance. Though accused supplied labourers to the tune of Rs.30,96,035/- and thereafter abruptly the labourers left. When the complainant demanded accused to return the balance amount, he issued a cheque dated 12.11.2014 for an amount of Rs.8,36,585/-. It is further alleged that on 14.11.2014 when the said cheque was presented for encashment, it returned dishonoured with an endorsement "insufficient funds".
3. After complying with the legal formalities, complaint came to be filed in PCR No.19/2015 for the offence punishable under section 138 of the N.I. Act. After recording sworn statement, the Trial Court has taken cognizance and registered the case in C.C.No.34/2016 and issued summons to the accused and it is duly served. Since the accused failed to appear before the Trial Court, non-bailable warrant came to be issued through local police and also through the Superintendent of Police, Beed District, Maharashtra State. As the concerned police were not able to secure the presence of accused, complainant -4- CRL.P No. 101505 of 2019 filed application under Section 82 of Cr.P.C., with a prayer to issue proclamation. On 12.04.2019, the application came for consideration. However, without issuing proclamation, arbitrarily, the Trial Court has dismissed the application and also proceeded to close the proceedings under Section 258 of Cr.P.C., by observing that the presence of accused not secured is since last three years.
4. Since the accused has remained absent before the Trial Court and inspite of taking several steps, his presence could not be secured, issuance of notice to the respondent-accused in the present case is dispensed with.
5. During the course of arguments, the learned counsel for the petitioner submit that when the accused intentionally evaded the process of the Court, as provided under Section 82 of Cr.P.C., the complainant is required to get a proclamation issued and proceed further in accordance with law. However, instead of granting prayer for proclamation, the Trial Court has abruptly closed the proceedings under Section 258 of Cr.P.C. The failure to -5- CRL.P No. 101505 of 2019 secure the presence of the accused is not on account of negligence on the part of the complainant, but the concerned police have failed to discharge their responsibility, for which the complainant cannot be punished. The abscondance of accused despite initiation of coercive steps is not a ground to invoke provisions of Section 258 of Cr.P.C. and prays to allow the petition restoring the case to the file and direct the Trial Court to proceed with the matter.
6. Heard the arguments and perused the records.
7. The complainant has challenged the impugned order dated 12.04.2019 stopping further proceedings under section 258 of Cr.P.C., on the ground that inspite of he filing application seeking issue of proclamation against the accused, the Trial Court without any justification has closed the further proceedings.
8. As evident from the order sheet, in spite of complainant taking steps for issue of summons and thereafter also for issue of non-bailable warrants against -6- CRL.P No. 101505 of 2019 the accused, they are not executed and consequently in spite of the matter pending since 2016, the presence of the accused could not be secured.
9. However, on 30.03.2019, the learned counsel for complainant has filed application under section 82 of Cr.P.C., with a prayer to issue proclamation against accused. The Trial Court has chosen to dismiss the said application on the ground that the proclamation is also sought to the very same address and that the complainant is not diligent in prosecuting the case. In addition, the Trial Court has also chosen to close further proceedings under section 258 of Cr.P.C.
10. When summons is served and accused remains absent or where after appearing and securing bail he remains absent, his presence could be secured through non-bailable warrant. Where the court is convinced that the presence of the accused could not be served even through non-bailable warrant, section 82 of Cr.P.C., makes provision for issue of proclamation that the person against -7- CRL.P No. 101505 of 2019 whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed and such Court may publish a written proclamation requiring him to appear at a specified place and time not less than 30 days from the date of publishing such publication. In case, after proclamation the accused failed to appear before the Court to answer the charges, then section 83 of Cr.P.C., makes provision for attachment of property of such person.
11. Therefore, in order to take further coercive steps, issue of proclamation is necessary. When the petitioner has sought for issue of proclamation, the proper course available to the Trial Court was to allow the application and proceed further in accordance with law. It may be true that the matter was pending for a long time. However, it is not a ground to reject the application filed by the complainant seeking issue of proclamation which would be in furtherance of further steps to be taken. -8- CRL.P No. 101505 of 2019
12. The Trial Court has not only erred in rejecting the application filed by the complainant but also stopping further proceedings under section 258 of Cr.P.C., which is available only in those summons cases, which are instituted otherwise than upon a complaint. In the present case the proceedings initiated by the complainant are based on complaint filed under Section 200 of Cr.P.C. Thus for the above reasons, I hold that the impugned order is not tenable and it is liable to be set aside and accordingly, I proceed to pass the following:
ORDER The petition filed under section 482 of Cr.P.C., is allowed.
In the result, the impugned order dated 12.04.2019 in C.C.34/2016 on the file of the Additional Senior Civil Judge and JMFC, Mudhol, rejecting application filed under section 82 of Cr.P.C., and closing further proceedings under section 258 of Cr.P.C., is set aside.
The proceedings are restored to the file with a direction to proceed by considering the -9- CRL.P No. 101505 of 2019 application filed by the complainant under section 82 of Cr.P.C.
In view of disposal of the matter, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.
Sd/-
JUDGE AC/YAN