The court emphasized that the FIR for the offence under Section 174-A IPC was an independent cause of action and could not be quashed merely because the complaint case under Section 138 NI Act was settled.

Mukta Gupta, J.

1. By the present petition the Petitioner seeks quashing of FIR No. 14/2011 registered under Section 174-A IPC at PS Farsh Bazar.

2. Before adverting to the facts of the case it may be noted that the Petitioner had earlier filed a W.P.(CRL) 412/2011 before this Court with the same prayer seeking quashing of the abovementioned FIR and the proceedings arising therefrom. The said writ petition came up for hearing before this Court on 25th March, 2011 when notice was issued and the Respondent/State was directed to file a reply. The matter was listed on 18th July, 2011 after a status report was filed by the State. On 18th July, 2011 after the matter was heard, learned counsel for the Petitioner realizing that the Court was not inclined to grant any relief, sought leave to withdraw the said petition, which was permitted to be withdrawn.

3. On a preliminary issue regarding the maintainability of the present petition posed to the learned counsel for the Petitioner, reliance is placed on Daryao and Ors. v. State of U.P. and Ors., AIR 1961 SC 1457 to contend that if a petition is dismissed as withdrawn, it cannot be a bar to a subsequent petition under Article 32 of the Constitution because in such a case there has been no decision on the merits by the Court. No doubt it would not constitute a bar of res-judicata but certainly propriety does not permit the Courts to entertain repeated petitions for the same prayer when the Petitioner as seeing that no relief is being granted, cleverly withdraws the petition.

4. Learned counsel for the Petitioner contends that a complaint under Section 138 Negotiable Instruments Act (in short N.I. Act) was filed against the Petitioner. During the said proceedings summons were not served on the Petitioner and without service of summons, the next process of issuing warrants and non-bailable warrants were resorted to. Even the procedure adopted under Section 82 Cr.P.C. was illegal as the proclamation was not published in the newspaper “The Statesman” as directed by the Court but in another news daily. Further the statutory time of 30 days notice was not adhered to. Moreover, since the Petitioner appeared before the Learned Trial Court in the proceedings under Section 138 of the N.I. Act, the Petitioner was no more an absconder and the process under Section 83 Cr.P.C. was recalled. In view thereof the direction of the Learned Metropolitan Magistrate for registration of FIR under Section 174-A IPC and the continuation thereof is an abuse of the process of the Court and is required to be quashed to meet the ends of justice. It is also contended that cognizance for an offence punishable under Section 174-A IPC can be taken only on a complaint filed under Section 195 Cr.P.C. and in the absence of a complaint, no cognizance on the charge-sheet could have been taken.

5. Learned APP on the other hand contends that the essential requirement under Section 82(2)(i) Cr.P.C. is of affixation and the requirement under Clause (iii) for publication in the newspaper is not mandatory. Hence in the absence of a proper publication also, if an affixation alone is made the requirement of procedure under Section 82 Cr.P.C. stands satisfied. Even the Learned Trial Court noted satisfaction on the basis of return of process under Section 82 Cr.P.C. by way of affixation and had thus directed registration of FIR under Section 174-A IPC.

6. I have heard learned counsel for the parties. The facts of the present case are that a complaint was filed under Section 138 of the NI Act against the Petitioner. On 20th April, 2008 summons were issued to the Petitioner. As per the record of the Trial Court the process was served on Ms. Seema, wife of the Petitioner. Thereafter again processes were issued, however the Petitioner remained unserved. Thus on 28th July, 2009 the Learned Trial Court issued bailable warrants in the sum of Rs. 3000/- returnable on 9th October, 2009. However, the said process could also not been execute