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2008(1) Bankmann 203 (P&H)
PUNJAB AND HARYANA HIGH COURT
Mahesh Grover, J.
Dilawar Singh —Petitioner
versus
Pankaj Joshi and Anr. —Respondents
Criminal Misc. No. 35240M of 2005
Decided on 21.2.2007
Facts of the Case:
Petitioner had paid Rs. 5,00,000 to respondent No. 1 on latter’s representation that he would send petitioner abroad. Respondent No. 1 failed to fulfil his promise and when petitioner demanded his money back, respondent issued a cheque of Rs. 5,00,000 dated 31.7.1999. On presentation, the cheque was returned for the reason “insufficient funds”. Petitioner served a legal notice and thereafter filed a complaint under Section 138 of NI Act.
After recording preliminary evidence respondent was ordered to be summoned on 9.2.2001 vide order dated 16.12.2000. Respondent/accused continued to evade service and despite issue of bailable/non-bailable warrants his presence could not be secured.
The Court then ordered proclamation under Section 82 of Cr.P.C. vide order dated 26.7.2002. Subsequently the matter was number of times in this regard. On 26.5.2003 the complaint was dismissed as complainant was not present. The complainant/petitioner was not aware of this dismissal as he was labouring under the impression that respondent has already been declared a proclaimed offender.
Sometimes in the month of May, 2005 petitioner came to know that respondent had been arrested in connection with same other criminal case filed against him. The petitioner moved an application before Trial Court for issue of production warrant of accused and gave particulars of his arrest and his being in police custody. The said application was dismissed by Trial Court on the ground that complaint had already been dismissed on 26.5.2003.
Hence the petition under Section 482 of Cr.P.C. assailing the order dated 26.5.2003 dismissing the complaint and subsequent order dated 19.5.2005 dismissing aforesaid application.
Finding of the Court
The Trial Court was clearly in error in resorting to extreme step of dismissal of complaint especially in view of the fact that matter was pending primarily to secure the presence of respondent and proceedings under Section 82 of Cr.P.C. were contemplated against him.
Result: Petition allowed.
Mahesh Grover, J.—This is a petition under Section 482 of the Cr.P.C. praying for quashing of the order dated 26.5.2003 (Annexure P6) and order dated 19.5.2005 (Annexure P8), passed by the learned Trial Court (Sub-Divisional Judicial Magistrate, Balachaur).
2. The facts of the case are that the petitioner had paid an amount of Rs. 5,00,000 to respondent No. 1 on the strength of the representation made by the said respondent that he would send the petitioner abroad. The respondent No.1 failed to fulfil his obligation and when the petitioner demanded his amount back, he issued a cheque of Rs. 5,00,000 bearing No. 445358 dated 31.7.1999 drawn on Oriental Bank of Commerce, Manimajra. On presentation, the said cheque was dishonoured and returned with a remark “Insufficient Funds”. The petitioner served a legal notice and thereafter filed a complaint in the year 2000 under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’). The respondent was thereafter ordered to be summoned for 9.2.2001 vide orders dated 16.12.2000 after preliminary evidence was recorded.
3. The respondent continued to evade the process of service and repeated process was issued by the Court for effecting the service upon him. Even bailable warrants were issued but the presence of the respondent could not be secured. The petitioner thereafter made an attempt to serve the respondent through publication which was allowed and the notice was published in the ‘Dainik Tribune’. Bailable warrants were again issued.
4. The Trial Court then came to the conclusion that it was not possible to secure the presence of respondent through ordinary process and ordered the proclamation under Section 82 of the Cr.P.C. by passing an order to that effect on 26.7.2002. Subsequently, the matter was adjourned a number of times. Pursuant to the aforesaid proceedings under Section 82 of the Cr.P.C., the relevant orders are as below:
“Present: Complainant with Counsel.
Proclamation under Section 82, Cr.P.C. received back unexecuted. As per earlier order, proclamation be again issued for 25.9.2002.
Sd/- SDJM/21.8.2002
Present: Complainant with Counsel.
Proclamation received back unexecuted. Ahlmad is directed to issue reminder for 12.10.2002.
Sd/- SDJM/25.9.2002
Present: Sh. Lalit Chowdhary,
Counsel for the complainant.
Statement of Sh. Harkewal Singh, HC No. 202, P.S. Balachaur, has been recorded with regard to execution of proclamation under Order 82, Cr.P.C. As per the report of the Head Constable proclamation was effected on 11. 10.2002 vide his report Ex. P1. Notice to SHO, P.S. Balachaur, be issued with direction to produce the Roznamcha before the Court on 24.10.2002.
Sd/- SDJM/12.10.2002
Present: Sh. Lalit Chowdhary, Counsel for the complainant.
Head Constable Gurchain Singh is present and he has produced the Roznamcha of 11.10.2002. He has been directed to further direct HC Harkewal on 25.10.2002 for proceeding further.
Sd/- SDJM/24.10.2002
Present: Sh. Lalit Chowdhary, Counsel for the complainant.
State HC Harkewal Singh is present and I have gone through the Roznamcha dated 11.10.2002. HC Harkewal Singh has not made any entries in the Rapat Roznamcha. I warn HC Harkewal Singh to be careful in future and I order to issue fresh proclamation under Section 82, Cr.P.C. for procuring the presence of accused Pankaj Joshi. Proclamation be issued for 2.12.2002.
Sd/- SDJM/25.10.2002
Present: Sh. Lalit Chowdhary, Counsel for the complainant.
File put up before me as learned Presiding Officer is on leave. Proclamation effected. To come upon 20.12.2002 for statement of executing official.
Sd/- SDJM/2.12.2002
Present: Sh. Lalit Chowdhary, Advocate for the complainant.
Case adjourned to 14.2.2003 for recording the statement of executing official. Executing official be summoned for 14.2.2003.
Sd/-SDJM/16.11.2002
Present: Complainant with Counsel. HC Harkewal Singh be summoned for 16.1.2003 for recording his statement.
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