JUDGMENT :

Sanjay Vashisth, J. (Oral)

1. By way of instant petition, petitioner - Satyander Kumar @ Satyender Kumar, aged 48 years, has sought quashing of the order dated 10.04.2023 (Annexure P-3) passed by learned Judicial Magistrate 1st Class, Hisar, in a complaint case u/s 138 of Negotiable Instruments Act, bearing complaint No.24 dated 05.01.2022, vide which petitioner was declared proclaimed person (PO) and all the consequential proceedings arising thereof, including FIR No.922 dated 30.08.2023, u/s 174-AIPC, registered at P.S. HTM, District Hisar.

2. To strengthen the plea that impugned order by which the petitioner was declared Proclaimed person is illegal and erroneous, counsel for the petitioner submits that actually, the petitioner was not residing at the address given in complaint, because since July, 2020, he had already shifted in District Panchkula from Hisar.

Complaint dated 05.01.2022, filed under Section 138 of the Negotiable Instruments Act, contains the address of the accused (petitioner herein), which is mentioned as under:-"Satyender s/o Sh. Om Parkash (Ex Sarpanch. Chandan Nagar, Village Bir Hisar), now resident of Gagandeep Colony, Near Chandan Nagar, Balsamand Road, Hisar Tehsil and District Hisar"

3. The above contention is detailed in paragraph No.7 of the present petition. It is further submitted that no summons, notice, bailable warrants, or non-bailable warrants were ever served upon the petitioner at any address located in District Panchkula.

Elaborating on the sequence of events regarding the issuance of notices to the accused, learned counsel for the petitioner points out that initial notice was issued on 07.03.2022 for appearance on 16.05.2022. However, the notice could not be served as it was allegedly refused by the petitioner's son. Consequently, bailable warrants were issued on 16.05.2022, and it was thereafter projected that the said warrants were served through the petitioner's wife. It is submitted that this was factually incorrect, as the wife of the petitioner had been residing in Panchkula since July 2020.

4. Vide order dated 09.09.2022, non-bailable warrants were issued against the petitioner. However, the warrants were received back unexecuted with the report stating that petitioner had gone out of station. In this regard, on 09.03.2023, statement of SI Chhotu Ram was recorded, wherein he stated that proclamation against the petitioner had been duly published on 07.01.2023. Accordingly, proclamation under Section 82 Cr.P.C. was issued for 10.04.2023.

Subsequently, on 10.04.2023, petitioner was declared a proclaimed person. Following this, a copy of the proclamation order was forwarded to the concerned Station House Officer (SHO) with a direction to register a case against the petitioner under Section 174-A of the Indian Penal Code.

5. Counsel for the petitioner submits that it cannot be concluded with certainty that notice upon the accused had actually been effected or proceedings were in notice, before declaring the petitioner as Proclaimed person because;

i) No other statement except of SI Chhotu Ram was recorded to confirm that he had actually published the proclamation on 07.01.2023.

ii) Even order dated 16.05.2022 and 09.09.2022, nowhere concludes or records satisfaction of effecting of actual service upon the accused.

iii) Even while ordering for proclamation u/s 82 Cr.P.C., it is noticed that non-bailable warrants issued against the accused received back unexecuted with the report that he had gone out of station.

In other words, without execution of non-bailable warrants proclamation has been issued.

6. Another important question involved pertains to the actual date of publication of the proclamation and whether the same was publicly read out at a conspicuous place in the locality where the accused ordinarily resides. It is submitted that merely recording satisfaction on the basis of assumptions, without strict compliance with the procedural requirements under the law, is not sufficient or