The Court can invoke the procedure under Section 82 Cr.P.C. if there are sufficient materials to conclude that the accused is evading the NBW.

These revisions have been filed against the orders, dated 27.02.2007, passed in M.P.Nos.653 and 654 of 2007 in C.C.No.4851 of 1996 on the file of XVIII Metropolitan Magistrate, Saidapet, Chennai, whereby the requests of the petitioner to declare second respondent as a proclaimed offender and to attach his properties, were rejected.

2. Briefly stating, the facts are as under :

2. 1. Petitioner is a proprietary concern, engaged in export of cashew kernels. Respondent No.1 is a partnership firm and respondent No.2 is the Managing Partner, who agreed with the petitioner to arrange cashew kernels for export, but he did not do so, after accepting the cheque, which later got bounced. In the first respondent firm, there were three partners, by name, T.Selvam, T.Muthukrishnan and T.Vijayarangan, who are siblings of second respondent.

2. 2. Petitioner preferred a private complaint in C.C.No.4851 of 1996 on the file of XVIII Metropolitan Magistrate Court, Saidapet, Chennai, against the respondents and the respondents were found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act; whereby first accused was sentenced to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for three months and second accused to undergo simple imprisonment for one year. It was further directed to pay a compensation of Rs.11.00 lakhs to the de facto complainant. Against the said conviction, Criminal Appeal No.262 of 2003 was preferred by the respondents on the file of III Additional Sessions Court, Chennai, and the said Court confirmed the conviction and sentence on 29.01.2004.

3. Respondents carried the judgment of the appellate Court in revision before this Court in Criminal R.C.No.853 of 2004 and this Court, on 14.03.2006, dismissed the revision, confirming the judgment of the appellate Court.

4. Subsequently, the petitioner had taken steps to get the NBWs executed against the respondents/accused through police, but the NBW against second accused could not be executed by the police, even though on two occasions, the XVIII Metropolitan Magistrate, Chennai, issued the same. It is stated by the petitioner that the police were unable to execute the warrant, since the accused was not available either in his residence or office.

5. The sureties action was also taken by the said Court, but, on summoning them, they pleaded their inability to locate second accused.

6. Facing the failure to execute the NBW against second accused, the petitioner filed two petitions before the XVIII Metropolitan Magistrate Court, Saidapet, Chennai, in M.P.Nos.653 and 654 of 2007 under Sections 82 and 83 Cr.P.C., for the relief stated supra.

7. Both the petitions suffered dismissal at the hands of the said Magistrate. In the order passed in petition under Section 82 Cr.P.C., the Magistrate observed that on a perusal of the records, the Court found that the report submitted by the Inspector of Police was not sufficient to declare the accused as a proclaimed offender. Inasmuch as the petition under Section 83 is concerned, the observation of the Magistrate goes to the effect that since the accused was never declared as a proclaimed offender, the de facto complainant cannot seek attachment of the properties of the accused and that he may seek remedy before the District Collector, as per the provisions contemplated under the Revenue Recovery Act.

8. Aggrieved over the said orders, the petitioner is now before this Court, with these revisions.

3. In this context, it is profitable to mention Section 82 Cr.P.C., which reads as follows :

"82.Proclamation for person absconding.-(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at specified time not less than thi