Delhi District Court
Rahul Arora vs State on 12 April, 2019
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04 & SPECIAL JUDGE
(NDPS) SOUTH EAST: SAKET COURTS: NEW DELHI
CR No. 148 of 2019
Rahul Arora
S/o Sh. S. K. Arora
R/o G13, South Extention PartII,
New Delhi - 110049 ....... Revisionist
Vs.
1. State
Through Ld. Public Prosecutor
2. Sh. Kanahiya Lal
S/o Late Laxman Singh
R/o B53, Shayam Nagar,
Okhla Phase3,
Okhla Industrial Area,
New Delhi 110020 ....... Respondent
Instituted on : 11.03.2019
Argued on : 04.04 2019
Decided on : 12.04.2019
ORDER
1 The revisionist has impugned the order dated 02.03.2019 passed by the Ld. Trial Court vide which process u/s 82 Cr.PC and warrant of attachment of Rs. 1 Lakh have also been issued against him.
Rahul Arora Vs. Kanahiya Lal & Anr. - CR No. 148 of 2019 Page1 of 8 2 The revision has been filed on the grounds that he has been represented every time by his Counsel and even then NBW has been issued. He has placed his medical papers on record for the grant of personal exemption but Ld. Trial Court has arbitrarily rejected the same. The matter has been settled in Mediation Center. He has already made the payment of settled amount to the respondent who is ready to withdraw the complaint. His absence was neither intentional nor deliberate. Hence, this revision.
3 Notice of the revision is given to the respondent. 4 The facts of the case are like this. The respondent has filed a complaint u/s 138 NI Act against the revisionist. The pre summoning evidence was led and the revisionist was summoned for the offence u/s 138 NI Act. On 05.05.2017 the revisionist was admitted to bail. The matter was referred to Mediation Center for settlement. The matter stands settled in mediation on 26.10.2017. On 28.08.2018 the revisionist was absent but his Counsel was present. The terms of settlement were not complied. The application for exemption from personal appearance of the revisionist was filed. Rahul Arora Vs. Kanahiya Lal & Anr. - CR No. 148 of 2019 Page2 of 8 NBW was issued against the revisionist. On 06.10.2018 the Counsel for the revisionist was present. NBW remained unexecuted. The application for exemption from personal appearance of revisionist was dismissed and process u/s 82 Cr.PC was issued. On 02.03.2019 the application to cancel process u/s 82 Cr.PC was dismissed and fresh process u/s 82 Cr.PC was issued alongwith warrant of attachment of Rs. 1 Lakh against him.
5 Ld. Counsel for the revisionist submitted that revisionist could not comply with the terms of settlement due to financial constrains. He further submitted that the Counsel for the revisionist used to appear in the Court and moved an application for exemption from personal appearance but the application was rejected which led to the issuance of NBW and thereafter process u/s 82 Cr.PC against him. He further submitted that no notice u/s 446 Cr.PC has been served upon him and issuance of warrant of attachment is bad in the eyes of law. He further submitted that he has made the payment of settled amount to the respondent who has even agreed to withdraw the complaint.
Rahul Arora Vs. Kanahiya Lal & Anr. - CR No. 148 of 2019 Page3 of 8 6 Ld. Counsel for the respondent submitted that respondent has received the payment of settled amount and respondent is even willing to withdraw the complaint.
7 Heard and perused the record.
8 The perusal of the trial Court record shows that revisionist has been admitted to bail on 05.05.2017. The matter has been referred to the mediation. The parties have settled the dispute in mediation and terms of settlement were reduced into writing. The revisionist did not make the entire payment of settlement amount.
9 Ld. Trial Court has issued warrant of attachment u/s 431 Cr.PC in order to realize the settlement amount by placing reliance on the case law bearing Criminal Reference No. 1/2016 tittled as Dayawati Vs. Yogesh Kumar Gosain decided on 17.10.2017 by Hon'ble High Court of Delhi.
10 The order sheet dated 28.08.2018 shows that revisionist was absent but his Counsel was present. An application for exemption from personal appearance of the revisionist was moved. The order sheet nowhere shows that the application was rejected. There should Rahul Arora Vs. Kanahiya Lal & Anr. - CR No. 148 of 2019 Page4 of 8 have been a specific order whether the application for exemption from personal appearance of the revisionist was allowed or rejected. Moreover, the filing of the application itself shows that revisionist is not deliberately appearing in the Court. He has sought his exemption for one reason or another. The Court could have dismissed the application and directed the Counsel to produce the revisionist on the next date of hearing. Instead of adopting this procedure, the Court has issued NBW against the revisionist.
11 On 06.10.2018 the revisionist was absent but his Counsel was present. NBW was received back unexecuted. The application for exemption from personal appearance of the revisionist was dismissed. The bail bonds were forfeited. Process u/s 82 Cr.PC was issued.
12 The NBW has remained unexecuted. The report on the NBW shows that revisionist was a tenant in the premises who has vacated it around a year ago. His whereabouts are not known. The report nowhere shows that revisionist is avoiding the service of NBW. The order dated 06.10.2018 nowhere shows that the Court has Rahul Arora Vs. Kanahiya Lal & Anr. - CR No. 148 of 2019 Page5 of 8 recorded the reason that revisionist is absconding or concealing himself in order to avoid the execution of warrant of arrest. The court has to record this reason before issuing the proclamation u/s 82 Cr.PC. Further the application of the revisionist for exemption from personal appearance itself shows that he is not absconding or avoiding the service or execution of warrant of arrest. The proclamation was issued without recording the reason.
13 On 02.03.2019 the revisionist was absent but his Counsel was present. The application to cancel the process u/s 82 Cr.PC was dismissed. Fresh proclamation alongwith warrant of attachment of Rs.1 Lakh was issued against the revisionist.
14 The order sheet dated 06.10.2018 shows that bail bond has been forfeited. It nowhere shows that notice u/s 446 Cr.PC has been issued to the revisionist. Section 446 Cr.PC says that the court should record the reasons for forfeiting the bond and may call upon the person bound by such bond to pay the penalty thereof or to show cause why it should be paid.
Rahul Arora Vs. Kanahiya Lal & Anr. - CR No. 148 of 2019 Page6 of 8 15 The order sheet dated 06.10.2016 shows that application for exemption from personal appearance of the revisionist was dismissed. NBW was already issued against him. The bail bond has been forfeited. The question of forfeiting the bail bond does not arise once the Counsel for the revisionist has put the appearance and moved an application for exemption from personal appearance in the Court. Further, the requirements of section 446 Cr.PC are not complied with before issuing warrant of attachment against the revisionist. 16 The perusal of the record further shows that the revisionist has not complied with the terms of settlement dated 26.10.2017 recorded in the Mediation Center, Saket. On 12.04.2018 the court invoked Section 431 Cr.PC and issued warrant of attachment to recover the settlement amount by placing reliance on the case law tittled as Dayawati Vs.Yogesh Kumar Gosain, SUPRA. The Court could not have issued NBW and thereafter proclamation u/s 82 Cr.PC alongwith warrant of attachment after forfeiting the bail bond once warrant of attachment u/s 431 Cr.PC was issued.
Rahul Arora Vs. Kanahiya Lal & Anr. - CR No. 148 of 2019 Page7 of 8 17 Ld. Counsel for the respondent has conceded during the course of arguments that settlement amount has been received and respondent is ready to withdraw the complaint.
18 In view of my aforesaid discussion, I find an infirmity in the order dated 02.03.2019 passed by the Ld. Trial Court. The order is set aside. The revision is allowed.
19 TCR alongwith copy of the order be sent to the Ld. Trial Court.
20 Revision file be consigned to record room.
announced in the
open court on
12th April 2019 (SURESH KUMAR GUPTA)
Add. Sessions Judge04 & Spl. Judge (NDPS)
South East, New Delhi
Rahul Arora Vs. Kanahiya Lal & Anr. - CR No. 148 of 2019 Page8 of 8