The court held that despite the absence of a timeframe for executing warrants, the issuance of proclamation and attachment under Sections 82 and 83 of Cr.P.C. can still be warranted to ensure complainants' rights are upheld.

JUDGMENT :

SASHIKANTA MISHRA, J.

The petitioner is the complainant in 1 CC No. 557 of 2022 filed by him in the Court of learned JMFC (C), Cuttack under Section 138 of N.I. Act in which the present opposite party No. 2 is the accused.

2. In view of the point involved in the present case, the facts leading to filling of the complaint need not be gone into detail. It would suffice to state that on request of the accused the petitioner claims to have given him a loan of Rs. 2,00,000/- in cash for construction of his house. As per the written agreement executed between them, the accused issued a cheque towards repayment of the amount which was dishonoured by the concerned bank on the ground of insufficiency of funds. After complying with the relevant statutory provisions, the petitioner filed the complaint on 10.10.2022. On 27.10.2022, the Court below took cognizance of the offence under Section 138 of N.I. Act and issued summons to the accused. Such notice was found to have been validly served on the accused as per the postal tracking report received by the Court below. In view of non- appearance of the accused pursuant to such summons, the Court below, by order dated 02.02.2023 issued conditional bailable warrant (CBW) against the accused. Since the warrant did not yield any result the Court below, by order dated 04.04.2023 directed issuance of NBW against by the accused by recalling the CBW. This also did not yield any result. The petitioner therefore filed an application in the Court below on 11.07.2023 with prayer for issuing proclamation and attachment of property of the accused under Sections 82 and 83 of Cr.P.C. On the same day, the Court below rejected the prayer of the petitioner on the ground that the stipulated period of one year has not yet been elapsed with reference to Rule 326(b) of GRCO(Crl.) Vol.1. Said order is impugned in the present application, filed under Section 482 of Cr.P.C. with prayer to quash the same.

3. Heard Mr. K.K. Mohapatra learned counsel for the petitioner complainant and Mr. S.K.Mishra learned Additional Standing Counsel for the State.

4. Having regard to the point of law involved and the order proposed to be passed it was not felt necessary to issue notice to the accused leaving it open to him to seek variance of the order in future, if he so is advised.

5. Mr. Mohapatra, learned counsel for the complainant- petitioner submits that the Court below committed an error of law in referring to the provision under Rule 326 of GRCO (Crl.) which is not applicable to the facts of the case at all. Mr. Mohapatra further argues that as per the scheme of the Cr.P.C. the Court is required to first issue summons to the accused followed by warrant of arrest. If these modes are found not fruitful then proclamation and attachment of the property can be ordered. In the instant case the summons issued was duly served but the accused did not respond. The conditional bailable warrant issued by the Court below also did not yield the desired result. Therefore, the next option available for the Court is to issue proclamation and attachment as provided under Sections 82 and 83 of Cr.P.C. According to Mr. Mohaptra, this is a case where the accused has deliberately absconded only to frustrate the execution of warrant of arrest and therefore unless he is compelled to appear, the case of the complainant against him would be rendered infructuous.

6. Mr. Mishra on the other hand fairly submits that the reference to the provision under Rule 326 of GRCO (Crl.) by the Court below is misconceived because the same relates to sending of records to the dormant file where the accused, despite issuance of