ORDER: This is a petition for anticipatory bail, in a case under Sec. 138, Negotiable Instruments Act.

2. In the petition it is stated that one Ramesh has lodged a false complaint under Sec. 138 of the Negotiable Instruments Act, before IX Metropolitan Magistrate, Saidapet, Chennai, in C.C.No.1949 of 2003 against the petitioner. The learned counsel for the petitioner states that the matter was compromised on 24.3.2003, and the complainant agreed to withdraw the complaint on receiving Rs.30,00,000 and had also received the said sum. The complainant had also agreed not to proceed with the complaint and agreed to withdraw the same. Further, summons in this case was not served on the petitioner. Believing the words of the complainant, the petitioner did not appear before the Court. When the petitioner came to know that a non-bailable warrant had been issued by the Court as if the summons had been personally served on him, he was shocked. He apprehends that he may be arrested by executing the warrant. Hence, he has filed this petition.

3. The learned counsel for the petitioner states that the warrant has been issued mechanically; that he is prepared to be available for interrogation, on prior notice, and that he is ready to cooperate with the investigation; and that he is prepared to abide by any condition that may be imposed by this Court, in the event of his being enlarged on anticipatory bail.

4. No counter has been filed by the respondent. The learned Public Prosecutor submits that the provisions of Sec.438, Crl.P.C. can be resorted to only in case of a non-bailable offence. The offence under Sec.138, Negotiable Instruments Act is punishable with imprisonment for two years, and therefore the offence is bailable and hence anticipatory bail cannot be granted. On that ground alone the petition is liable to be dismissed.

5. Mr.K.Ramu, the learned counsel for the petitioner, submits that though it is a bailable offence, the Magistrate has issued non-bailable warrant; hence the petitioner is entitled for anticipatory bail, and there is no prohibition for granting anticipatory bail.

6. Mr.I.Subramanian, the learned Public Prosecutor, points out that the Supreme Court in Bharat Chaudhary v. State of Bihar, 2003 S.C.C. (Crl.) 1953 has held that-

“The object of Sec.438 is to prevent undue harassment of the accused persons by pretrial arrest and detention. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail. So also the need for custodial interrogation, but these are only factors that must be borne in mind by the Courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance of filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. The Courts i.e., the Court of Sessions, High Court or Supreme Court have the necessary power vested in them to grant anticipatory bail in the non-bailable offences under Sec.438, Crl.P.C. even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the Court to do so.”

That is, even after taking cognizance the Courts can grant anticipatory bail; but only in non-bailable offences. Therefore for bailable offences, Sec.438, Crl.P.C. does not come to the help the petitioner.

The learned Public Prosecutor also refers to an earlier judgment of this Court by Ali Mohammed, J. in Francis Xavier v. Neela-megam, Inspector of Police, (1995)2 M.W.N. (Crl.) 114 to the effect that even after filing of charge sheet, anticipatory bail can be granted in a non-bailable offence. In Manickam v. Inspector of Police, Kumarapalayam, (1994)2 L.W. (Crl.) 764, Janardanam, J. has observed that—

“The offence under Sec. 138, Negotiable Instruments Act, being bailable, it behoves upon the Superintendent of Police, Salem to whom the endorsement had been endorsed for the purpose of execution, to very well take security under Sec.71 and forward the

Click Here to Read the rest of this document