IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :: 11-10-2007

CORAM

THE HONOURABLE MR.JUSTICE S.PALANIVELU

CRIMINAL REVISION CASE Nos.575 & 581 OF 2007

M/s.Nachi Exports,

rep.by its Proprietor

V.E.Periannan

...

Petitioner in both cases

-vs-

1.M/s.T.K.Thiruvengadam & Sons

2.T.Selvam

... Respondents in both cases

Revisions under Sections 397 and 401 of the Code of Criminal

Procedure.

For petitioner : Mr.G.Anand

COMMON JUDGMENT

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

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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.

2.3. 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.

2.4. 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.

2.5. The sureties action was also taken by the said Court, but,

on summoning them, they pleaded their inability to locate second accused.

2.6. 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.

2.7. 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 cont