Non-compliance with Section 82 Cr.P.C. renders proclamation of an accused as nullity, warranting quashing of FIR under Section 174-A IPC.

Judgment

Mr. Harpreet Singh Brar, J.

The petitioner has approached this Court under Section 482 Cr.P.C. seeking quashing of FIR No.168 dated 18.07.2023 registered under Section 174-A IPC at Police Division No.5, Ludhiana (Annexure P-1) as well as order dated 24.10.2019 (Annexure P-3) passed by the learned Judicial Magistrate Class 1st Class, Ludhiana in NACT No.12293 of 2017 titled as Amarjit Singh Vs. M/s Sara International and another whereby the petitioner has been declared a proclaimed person.

2. Learned counsel appearing for the petitioner, inter alia, contends that a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) was filed against the petitioner herein at the instance of respondent No.2-complainant on the ground that the petitioner herein had purchased cycle parts from the complainant vide invoice No.0751 dated 01.04.2016 on credit and agreed to make the payment of said invoice within a period 30 days. However, when the petitioner herein failed to make the payment within the stipulated period, repeated requests were made to the petitioner to clear the dues but to no avail. Ultimately, the petitioner issued cheque bearing No.918512 dated 09.05.2017 for an amount of Rs. 9,27,938/- drawn on Punjab & Sid Bank, Miller Ganj, Gill Road, Ludhiana with the assurance that the same will be encahsed on presentation. However, when the said cheque was presented for encashment, it was dishonoured vide memo dated 01.08.2017 with the remarks ‘Account Closed’. The complainant served the legal notice dated 31.08.2017 vide registered A.D. upon the petitioner to discharge his credit liability but the same was not responded to by the petitioner and therefore, having left with no other option, complaint under Section 138 of the NI Act was made by the complainant against the petitioner. In the said complaint, vide impugned order dated 24.10.2019, petitioner herein has been declared a proclaimed person.

3. Learned counsel appearing for the petitioner submits that the impugned order is liable to be set aside on the sole ground that the complaint under Section 138 of the NI Act against M/s Saara International through its proprietor and one Sumit Gupta, being proprietor of Saara International and the petitioner herein namely Munish Gupta was not even arrayed as accused therein. Since the complaint was filed against Sumit Gupta whereas name of the petitioner herein is Munish Gupta, therefore, the petitioner herein was never served in the proceedings under Section 138 of the NI Act. To substantiate his contention, he relies upon the zimni orders (Annexure P-4). It is further contended that it was the Sumit Gupta, who was declared a proclaimed person and not the petitioner herein by the trial Court without following the mandate of Section 82 Cr.P.C. It is also contended that the respondent No.2-complainant had approached this Court by way of CRM-M No.45446 of 2022 arraying the petitioner herein as Sumit Gupta @ Munish Gupta whereas the complaint was filed against Sumit Gupta, seeking a direction to the official respondents therein to arrest the petitioner, who had been declared proclaimed person. On the directions of this Court, an enquiry was conducted by the police wherein it came forth that name of the petitioner as per his aadhaar card is Munish Gupta and not Sumit Gupta. In fact, respondent No.2-complainant had filed another complaint case bearing No.12292 of 2017 under Section 138 of the NI Act against the wife of the petitioner wherein they are regularly appearing. In fact, the respondent No.2-complainant did not appear before the investigating officer despite being called repeatedly. In support of his contention, he relies upon the report of ASI Sukhpal, Investigating Officer, which is attached with the present petition as Annexure P-5. It is also submitted that the petitioner undertakes to appear before the trial Court on each and every date.

4. Per contra, Ms. Navreet Kaur Barnala, AAG