Karnataka High Court
Shubha Shanshikanth vs The Commssioner on 19 October, 2023
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NC: 2023:KHC-K:8227
WP No. 202936 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
WRIT PETITION NO. 202936 OF 2023 (GM-RES)
BETWEEN:
MRS.SHUBHA SHANSHIKANTH,
AGED ABOUT 57 YEARS,
W/O DR.SHASHIKANTH.A.,
ASSOCIATE PROFESSOR,
GOVERNMENT FIRST GRADE COLLEGE,
VIJAYANAGAR, BENGALURU-560104.
...PETITIONER
(BY SRI HULEPPA HEROOR, ADVOCATE)
AND:
1. THE COMMSSIONER,
DEPARTMENT OF COLLEGIATE EDUCATION,
Digitally UNNATHA SIKSHANA SOUDHA,
signed by
SACHIN SHESHADRI ROAD,
Location:
High Court BENGALURU-560001.
Of Karnataka
2. THE PRINCIPAL,
GOVERNMENT FIRST GRADE COLLEGE,
VIJAYANAGAR, BENGALURU-560104.
...RESPONDENTS
(BY SRI J.SHAHABUDDIN, HCGP)
THIS WRIT PETITION FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO A) ISSUE
WRIT OF CERTIORARI OR ANY OTHER WRIT TO QUASH THE
IMPUGNED ORDER DATED 25-04-2023 PASSED BY THE
J.M.F.C., MANVI, RAICHUR DISTRICT IN C.C. NO.48/2019 AT
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NC: 2023:KHC-K:8227
WP No. 202936 of 2023
ANNEXURE-C TO RECOVER RS.25,000/- WITHOUT NOTICE
FROM THE SALARY OF THE PETITIONER IN THE INTEREST OF
JUSTICE AND EQUITY; B) ISSUE WRIT OF CERTIORARI OR ANY
OTHER WRIT OR DIRECTION TO QUASH THE IMPUGNED
ORDER PASSED BY THE RESPONDENT NO.2 TO RECOVER THE
SUM OF RS.25,000/- BEFORE 12.09.2023 AT ANNEXURE-D IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Learned High Court Government Pleader is directed to take notice for respondents.
Facts of the case is as under :-
2. The petitioner - Mrs.Shubha Shashikanth was the surety to accused in C.C.no.48/2019 on the file of Judicial Magistrate First Class, Manvi, Raichur District under private complaint filed under Section 200 of Code of Criminal Procedure for the offence punishable under Section 138 of Negotiable Instrument Act.
3. The petitioner had furnished surety bond before JMFC Court, Manvi for a sum of `25,000/-. The accused was not feeling well suffering from lower back pain extending to the right leg same was not submitted to the court by the accused counsel. Hence, trial Court had issued Non Bailable Warrant to -3- NC: 2023:KHC-K:8227 WP No. 202936 of 2023 the accused on 22.02.2023 and issue notice to the surety but same was un-served. Without service of notice to the surety, the trial Court has passed an order to direct the Head of EC -
Department of Collegiate Education, Nrupatunga road, Bengaluru to recover a sum of `25,000/- from the salary of the petitioner, which is illegal and it is opposed to principles of natural justice.
4. It is submitted by the learned counsel for petitioner that trial Court has not complied the mandatory provisions of Code of Criminal Procedure and passed impugned order, which is arbitrary, illegal and sought for to quash the same.
5. Further learned counsel for the petitioner submits that the petitioner is ready to produce accused before trial Court on next date of hearing. On these grounds sought to allow this petition.
6. I have examined the impugned order passed by trial Court dated 25.04.2023, which reads as under :-
"Case called out. NBW issued against accused is un executed. Notice issued to the surety un served. Perused. It is alleged against the accused that the accused has committed offence U/sec 138 of -4- NC: 2023:KHC-K:8227 WP No. 202936 of 2023 NI Act. After registering the case accused enlarged bail from this court on 31.01.2022. Surety by name Smt.Shubha Shashikanth W/o Dr.Shashikanth stood surety, undertaking to keep the accused present before the court on each date of hearing. The complainant examined as PW.1 and case posted for cross of PW.1. Accused as well as learned counsel for accused not appeared and therefore cross of PW.1 taken as nil and case posted for 313 statement. After getting bail accused not appeared single date before the court. Accordingly this Court issued NBW as well as notice to surety same are un executed, Therefore there is no any to issue attachment warrant against the surety for recovery of bond amount executed by the surety.
As the time of granting bail the surety petitioner executed bond of Rs.25,000/- and along with submitted salary certificate. On perusal of salary certificate wherein it is clearly goes to shows the surety petitioner working as a Assistant Professor the education department and getting salary of Rs.2,05,590/-. In view of non-appearing the accused it is just and necessary to recovery the bond amount of Rs.25,000/- from the salary of petitioner. Accordingly I proceed to pass the following :-5-
NC: 2023:KHC-K:8227 WP No. 202936 of 2023 ORDER I am hereby directed the head of EC- Department of Collegiate Education, Nrupatunga Road, Bangalore.
Office issue intimation accordingly. Re-issue NBW of accused. Call on 30.06.2023."
7. On perusal of impugned order passed by the trial Court, it is crystal clear that the trial Court has issued notice to surety, same is not served upon the petitioner. The trial Court has not taken any legal steps to secure the surety in accordance with law. Before service of notice, the trial Court has passed impugned order which is not sustainable under law.
8. Apart from this, the trial Court has not complied the mandatory provisions of Sections 446 and 446A of Code of Criminal Procedure before passing impugned order. Even trial Court has not forfeited the surety bond and passed impugned order for recovery of sum of `25,000/- which is opposed to provisions of Code of Criminal Procedure 1873. Hence, same is liable to be set-aside. Accordingly, I proceed to pass the following :
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NC: 2023:KHC-K:8227 WP No. 202936 of 2023 ORDER
(i) Writ petition filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Code of Criminal Procedure is allowed.
(ii) The impugned order dated 25.04.2023 as to recovery of a sum of `25,000/- from the salary of the petitioner is set-aside.
(iii) The petitioner/surety shall produce the accused before trial court on the next date of hearing without fail.
(iv) If petitioner fails to produce the accused before trial Court, the trial Court is directed to take necessary legal steps against the surety/petitioner as required under Sections 446 and 446A of Code of Criminal Procedure, 1973.
(v) Registry is directed to communicate this order through e-mail.
Sd/-
JUDGE SN List No.: 3 Sl No.: 2