Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Del) 1900

IN THE HIGH COURT OF DELHI AT NEW DELHI
J.R. Midha, J.
Sunil Tyagi - Appellant
Versus
Govt Of NCT Of Delhi & Anr. - Respondents
Criminal Miscellaneous Case No. 5328 of 2013, 5328 of 2013; Criminal Miscellaneous Appeal No. 19244 of 2013, 4438 of 2013; 5328 of 2013, 4438 of 2013
Decided On : 07-01-2021

Advocates appeared:
Ajayinder Sangwan, Advocate, Raj Sharma, Advocate, Arun Rathi, Advocate, Summinder Paswan, Advocate, Siddharth Gill, Advocate, Rahul Mehra, Advocate, Chaitanya Gosain, Advocate, Rajesh Deo, Advocate, Nikhil Goel, Advocate, Vinay Mathew, Advocate, Dushyant Sarna, Advocate, Dayan Krishnan, Advocate, Manvi Priya, Advocate, Aakashi Lodha, Advocate, Sukrit Seth, Advocate, Niharika Kaul, Advocate, Sanjeev Seshadri, Advocate, Vikas Pahwa, Advocate, G.S. Bajpai, Advocate, Rajshekhar Rao, Advocate, L.S. Chaudhary, Advocate

The central legal point established in the judgment is that a person cannot be declared as a Proclaimed Offender without proper service of summons and valid reasons to believe that the person is absconding or concealing himself.

Headnote:
Proclaimed Offender - Quashing of FIR No.27/2013 - Section 174A IPC - [138 Negotiable Instruments Act, Section 82 CrPC, Section 83 CrPC, Section 174A IPC] - The court found that the petitioner was never served with the summons and did not abscond or conceal himself. The declaration of the petitioner as a Proclaimed Offender was declared invalid. The petitioner's prosecution under Section 174A IPC was quashed.
Fact of the Case:

The petitioner was accused of issuing a dishonored cheque and was declared a Proclaimed Offender without being served with the summons. The petitioner settled the matter with the complainant and was acquitted. The police filed a charge sheet against the petitioner under Section 174A IPC.
Finding of the Court:

The court found that the petitioner was never served with the summons before being declared as a Proclaimed Offender. The declaration of the petitioner as a Proclaimed Offender was not valid. The charge against the petitioner under Section 174A IPC was quashed.
Issues: The main issue was the validity of declaring the petitioner as a Proclaimed Offender without proper service of summons.
Ratio Decidendi: The court held that the petitioner was never served with the summons and did not abscond or conceal himself, making the declaration of the petitioner as a Proclaimed Offender invalid.
Final Decision: The petition was allowed, and FIR No.27/2013 under Section 174A IPC and the proceedings were quashed. The impugned order declaring the petitioner as a Proclaimed Offender and framing a charge against the petitioner under Section 174A IPC were set aside and the proceedings were quashed.

JUDGMENT

J.R. Midha, J. - Crl.M.C. 5328/2013

1. The petitioner is seeking quashing of FIR No.27/2013 dated 22nd January, 2013, PS Amar Colony under Section 174A IPC.

2. The petitioner is a Director of M/s Core Builders Pvt. Ltd., who issued a cheque bearing No.002310 dated 06 th July, 2010 for Rs.20,00,000/- to respondent No.2. The aforesaid cheque was dishonoured upon presentation due to insufficiency of funds whereupon respondent No.2 instituted a complaint under Section 138 Negotiable Instruments Act against M/s Core Builders Pvt. Ltd. as well as against the petitioner.

3. The learned Metropolitan Magistrate issued summons to the petitioner at the addresses given in the complaint namely 1007, New Delhi House, 27, Barakhamba Road, New Delhi 110001 and Prabhat Nagar, Meerut City, Meerut, U.P. The summons issued to the Barakhamba Road address returned unserved with the remarks that there was no firm with the name of M/s Core Builders Pvt. Ltd. at the given address whereas the summons issued to Meerut address returned unserved with the remarks that the address was incomplete as no house number has been given in the complaint.

4. Respondent No.2 filed an application dated 06th January, 2011 before the learned Metropolitan Magistrate in which it was stated that the petitioner had shifted from address given in the complaint to the new address, namely Apartment No.601, Block No.4, Kailash Dham Apartments, Sector-51, Noida, U.P. whereupon the Court issued fresh summons at the above address which returned unserved with the report that the flat was lying vacant since last two years.

5. Respondent No.2 filed another application dated 13th October, 2011 in which the new address of the petitioner was given as Flat No.1012, Ashadeep Apartment, Oshiwara, Mumbai whereupon the Court issued the fresh summons at the aforesaid address which returned unserved with the remarks that the address was incomplete.

6. On 22nd May, 2012, the learned Metropolitan Magistrate recorded that the accused was willfully avoiding the service of summons and issued bailable warrants for Rs.50,000/- with one surety, returnable on 04th July, 2012. The bailable warrants issued to the petitioner returned with the report that there was no company of the given name at 1007, New Delhi House 27, Barakhamba Road, New Delhi-110001; Apartment No.601, Block No.4, Kailash Dham Apartments, Sector-51, Noida, U.P. was lying vacant for the last two years; and the Meerut address was incomplete. The order dated 22nd May, 2012 is reproduced hereunder:-

"Summons issued to the accused received back unserved. It is submitted by the complainant that accused is willfully avoiding the service of summons and this case is pending since 01.09.2010.

Perusal of the record shows that the matter is pending since 01.09.2010 and since then, summons have been issued to the accused a number of times. However, accused has not put in his appearance in the court till date. Moreover, the complainant in this case is a senior citizen aged about 69 years and the cheque amount involved in the case is Rs.20 lacs. Perusal of record further shows that the complainant has earlier furnished two new addresses of the accused, one of Noida (U.P.) and second of Mumbai (Maharashtra).

From the reports received on summons issued to the accused a number of times, would suggest that accused is willfully avoiding the service of summons and his presence cannot be secured in court without adopting coercive measures against him.

In the circumstances, issue B/W in the sum of Rs.50,000/- with one surety in the like amount through concerned SP/DCP at all the addresses of the accused returnable on 04.07.2012."

(Emphasis supplied)

7. On 04th July, 2012, the learned Metropolitan Magistrate issued nonbailable warrants against the accused returnable on 17th August, 2012. On 17th August, 2012, respondent No.2 gave a fresh address of the petitioner namely Alphag - Epitome Projects, Golf View Corporate Towers, Sector-42, Golf Course Road, Gurgaon-