The main legal point established in the judgment is the distinction between surety and security, and the application of Section 444 of the Cr.P.C. in discharging a surety.

JUDGMENT

Ashok Kumar Verma, J. (Oral) - The petitioner has filed the present petition under Section 482 read with Section 444 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') for quashing of impugned order dated 25.07.2022 (Annexure P-12) passed by learned Judicial Magistrate First Class, Ludhiana, whereby the application filed by the petitioner under Section 444 of the Cr.P.C. for discharging him as a surety of accused/respondent No.2 in Criminal Complaint No.COMA/4800+ 4801 of 2014 titled as 'Jasbir Kaur Vs. Mrs. Kalai Selvy Rasiah' has been dismissed.

2. Power of attorney has been filed by learned counsel for respondent No.1 in the Court today which is taken on record.

3. Brief facts of the case are that respondent No.1 preferred 04 complaints against respondent No.2 under Section 138 of the Negotiable Instruments Act, 1881 with the allegations that the cheques issued by respondent No.2 got dishonoured upon presentation. On his non-appearance before the Trial Court, respondent No.2 was declared proclaimed offender on 09.05.2017 and she was arrested on 12.02.2018 and sent to judicial custody. The bail applications filed by respondent No.2 was dismissed by the Trial Court. Thereafter, she approached this Court and filed 04 petitions bearing No. CRM-M-31362, 31409, 31414 and 31423 of 2018. The petitioner stood as surety of respondent No.2 and ready to deposit Rs.1 crore before the Trial Court for grant of bail to respondent No. 2. The Coordinate Bench of this Court allowed the above-said petitions vide order dated 30.08.2018 and granted bail to respondent No.2 subject to deposit of Rs.1 crore with the Trial Court. Aggrieved against the above-said order, respondent No.2 preferred SLP (Crl.) No.8618 of 2018 before the Hon'ble Supreme Court in which Hon'ble Supreme Court directed to deposit an amount of Rs.50 lakhs instead of Rs.1 crore. The present petitioner submitted 02 demand drafts amounting to Rs.49,85,840/- and Rs.14,160/- respectively (total amounting to Rs.50 lakhs) before the Trial Court, upon which the Trial Court released respondent No.2 on bail. Thereafter, some disputes raised between the petitioner and respondent No.2 and the petitioner has filed application under Section 444 of the Cr.P.C. before the Trial Court for discharging him as surety of respondent No.2 which was dismissed by the Trial Court vide impugned order dated 25.07.2022.

4. Learned counsel for the petitioner submits that the petitioner stood as surety of respondent No.2, who was penniless and resident of Tamil Nadu, in a good faith and deposited the amount of Rs.50 lakhs before the Trial Court in the shape of demand drafts. When respondent No.2 filed criminal case against the present petitioner by levelling serious allegations, it became necessary for the petitioner to get himself released as a surety of respondent No.2 and get back the surety amount. The Trial Court had wrongly dismissed the application filed under Section 444 by the petitioner observing that the petitioner submitted security for respondent No.2 and not surety and he cannot be discharged by exercising legal provision of Section 444 of the Cr.P.C. In the orders passed by this Court and Hon'ble Supreme Court, there is no mention of any word as 'security' and the said orders were passed in order to get respondent No.2 released on bail. Since, respondent No.2 is already in judicial custody, the petitioner has rightly submitted the application before the Trial Court for discharging him as a surety of respondent No.2. The impugned order has been passed only on the basis of surmises and the same is against the provisions of law. Therefore, the same may be quashed.

5. On the other hand, learned counsel for respondent No.1 has opposed the present petition and submits that on 30.08.2018, on instructions of petitioner-Sunder Rajan, who is cousin of respondent No.2, learned counsel for respondent No.2 stated before this Court that accused is penniless, her husband has also expired