Karnataka High Court
The Managing Director, Raitar Sahakari ... vs Sugreeva S/O Manikrao Karad on 3 March, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION No.101503/2019
Between
The Managing Director
Raitar Sahakari Sakkare Karkhane Niyamit,
Rannanagar, Timmapur,
Tq: Mudhol, Dist: Bagalkot,
Rep. by Mallikarjun
S/o Doddanaik Mallur, Age: 55 Years,
Occ: Managing Director,
R/o: Rannanagar, Timmapur,
Tq: Mudhol, Dist: Bagalkot.
...Petitioner
(By Sri Srinivas B Naik, Advocate)
And
Sugreeva S/o Manikrao Karad
Age: Major, Occ: Contractor,
R/o Thambava (160, Patil Galli
Gramin), Tq: Kaij, Dist: Beed,
State Maharashtra-431123.
Respondent
This 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 under Section 258 of Cr.P.C., dated
2
05.04.2019 in C.C.No.63/2013 on the file of the Prl. Senior Civil
Judge & JMFC Court, Mudhol, registered for the offences
punishable under Section 138 of Negotiable Instruments Act and
restore the complaint on its file.
This petition coming on for admission this day, the Court
made the following:
ORDER
The petitioner filed a private complaint under Section 200 of the Code of Criminal Procedure, 1973 against the respondent- accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'). The learned Magistrate, on 11.7.2013 after taking cognizance of the offence issued summons to the accused and the same was duly served on the accused. Since the respondent-accused remained absent from 28.10.2013 till 7.2.2019, the learned Magistrate ordered issuance of non-bailable warrant against the accused and the same was returned with an endorsement "unexecuted". On 28.10.2013, once again, the non-bailable warrant was issued and the same was returned with an endorsement "unexecuted" since the accused is not residing at the given address.
2. The petitioner/complainant filed an application under Section 82 of Cr.P.C. praying to issue a proclamation against 3 the accused at the same address. The learned Magistrate by the impugned order rejected the application filed under Section 82 of Cr.P.C., and acting under Section 258 of Cr.P.C. also stopped the further proceedings in view of non co-operation of the complainant in securing the presence of the accused for the last three years. Taking exception to the same, the complainant is before this Court.
3. The learned counsel appearing for the petitioner- complainant submits that the respondent-accused having absconded the petitioner had filed an application to issue proclamation against the accused for securing his presence, but the learned Magistrate instead of exercising the power under Section 82 of Cr.P.C. has committed an error in stopping the proceedings. He further submits that the learned Magistrate acting under Section 258 of Cr.P.C. is required to assign reasons for stopping the further proceedings. Hence, the impugned order is not a speaking order and the same requires to be interfered with.
4
4. The Notice to respondent is dispensed with, since the NBWs issued by the learned magistrate were not executed and the respondent is not residing in the given address and if the impugned order is interfered with , no prejudice would be caused to him.
5. I have considered the submissions made by the learned counsel for the parties.
6. Though summons was initially served on the accused, he did not choose to appear before the learned Magistrate and thereafter non-bailable warrants were issued against the accused on several occasions. However, the said NBWs were returned with an endorsement "Unexecuted" and that the accused is not residing at the given address. Such being the case, the learned Magistrate ought to have exercised the power under Section 82 of the Cr.P.C and issued proclamation at the very same address to secure the presence of the accused. Further, the learned Magistrate has not assigned any reasons for directing the stopping of further proceedings as required under Section 258 of Cr.P.C. The impugned order passed by the 5 learned Magistrate is contrary to Sections 82 and 258 of Cr.P.C. Hence, the impugned order is not sustainable in law. Accordingly, I pass the following:
ORDER The criminal petition is allowed. The impugned order dated 5.04.2019 passed by the Prl. Senior Civil Judge and JMFC Court, Mudhol, in C.C. No.63/2013 is quashed. The application under Section 82 of Cr.P.C. is restored to its file and the learned Magistrate is required to proceed further from the stage where the proceeding was stopped and pass appropriate orders on the application filed under Section 82 of Cr.P.C.
Sd/-
JUDGE bkm