The court upheld the issuance of NBWs to ensure the accused's presence and speedy justice, emphasizing that abuse of the process of law cannot be allowed.

Suresh Kait, J.

Crl.M.A. No.3868/2016 (for exemption)

Exemptions allowed, subject to all just exceptions.

Accordingly, the application is allowed.

Crl. M.C. No.923/2016

1. Vide the present petition, the petitioner has prayed as under:-

“a) Recall the order dated 18.02.2016 and 22.02.2016 and cancel the NBW issued against the Petitioner;

b) Expunged the observation made against the counsel for an accused;

c) Allow the examination of witness u/s 311 without any constraint;

d) Pass an order to direct the Respondent to pay Rs.34 Lakhs paid by the Petitioner qua the settlement recorded before the ld. Trial Court;

e) Quash the complaint as the Respondent has committed fraud on the court.”

2. The present petition is filed on the ground that the learned Trial Court has erred in passing the impugned orders as NBWs cannot be issued as a measure of punishment. It is only for disciplining the court proceedings, however, it has nothing to do with the merits of the case. As per the High Court Rules and Orders, it has been stated that warrants should not be issued unless absolute necessary. Great care should be taken not to issue a warrant when summon should be sufficient for the ends of justice.

3. Learned counsel appearing on behalf of the petitioner submits that while passing the impugned orders, the learned Trial Court failed to appreciate that the respondent has already demolished his case by taking contrary stand in the case and it is solemn provision of law that one who commits fraud on the Court does not deserve any kind of relief. The learned Trial Court has unnecessarily widened the scope of examination under Section 311 Cr.P.C. by limiting the scope of cross-examination till the documents on record. The impugned orders are contrary to the right of fair justice of the petitioner.

4. Learned counsel further submits that the Ordinance is passed by the Parliament that coercive measure adopted by the Predecessor Court was deemed to be stayed, which is evident from the trial court orders dated 16.10.2015 and 04.11.2015. Moreover, the petitioner has already paid a sum of Rs.34,00,000/- out of Rs.80,00,000/- in question.

5. He further submits that the petitioner is staying in Mumbai and has been moving applications for exemption, which were allowed by various orders by the learned Trial Court, however, passed the orders which are under challenge in this petition. It is submitted that the petitioner is ready to face trial and undertakes to appear as and when called by the learned Trial Court.

6. In support of his submissions, the learned counsel for the petitioner has relied upon the judgments of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. (2007) 12 SCC 1 and Bhaskar Industries Ltd. Vs. Bhiwani Denim & Apparels Ltd. & Anr., (2001) 7 SCC 401.

7. Vide order dated 18.02.2016, the learned Trial court passed the order as under:-

“Present: AR of the complainant with Ld. counsel.

Accused absent.

Ld. counsel for accused.

Exemption application on behalf of accused is filed.

Considering the previous conduct and the fact that the transferor court has issued NBW against accused vide order dated 13.05.2015. The said NBW has not been cancelled till date. Though, the exemption application of accused was allowed on the last date of hearing. It seems that accused is deliberately avoiding his appearance. Application dismissed.

DW-1 partly examined. Further examination of DW-1 is deferred for the want of documents.

Issue NBWs against accused through DCP on filing PF.

Put up on 02.03.2016.”

8. In order dated 22.02.2016, the learned Trial Court recorded that the petitioner was summoned vide order dated 28.06.2008 and appeared in the court after issuance of summons and bailable warrants on 10.01.2011. Matter was settled on 03.06.2011. As per the settlement, petitioner had to make the entire payment of settled amount till 24.06.2013, however, failed to make the payment as per the settlement. Thereafter, the petitioner put his appearance through his counsel and k