Dismissed

Pratyush Rajvanshi v. State of U.P. and Another

Allahabad HC10 Apr 2023ABAIL/2479/2023

Case brief

AI extract

What is this about?

The High Court rejected a maintainable anticipatory bail application filed by Pratyush Rajvanshi in a cheque dishonour case under Section 138 NI Act. The court held that the application is not maintainable for two reasons: first, as the applicant is a proclaimed offender, and second, because Section 138 NI Act defines a bailable offence, for which anticipatory bail under Section 438 Cr.P.C. does n

What did the court decide?

Application rejected as it is not maintainable given the applicant's status as a proclaimed offender and the bailable nature of Section 138 NI Act.

Pratyush Rajvanshi Vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2023)

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Court No. - 84

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2479 of 2023

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Applicant :- Pratyush Rajvanshi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashwini Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Pratyush Rajvanshi in Complaint Case No.50789 of 2019, under Section 138 Negotiable Instrument Act, Police Station - Lal Kurti, District – Meerut.

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Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the material available on record.

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It is submitted by learned counsel for the applicant that the applicant is innocent and has no concern with the present matter. He has not committed any offence. He has been falsely implicated in this matter. Allegations levelled against the applicant are false. It is further submitted that the applicant has no criminal history. If the applicant is enlarged on bail, he will not misuse the liberty and will cooperate with the investigation. The applicant has apprehension of his arrest by the police any time.

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Learned A.G.A. opposed the prayer.

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It appears from the perusal of the record that the present applicant was summoned by the Magistrate Court under Section 138 of the Negotiable Instrument Act vide order dated 18.1.2020 in a case instituted upon criminal complaint. The rejection order passed on the anticipatory bail application of the accused applicant by the Sessions Judge, Meerut dated 2.2.2023 reflects that nonbailable warrant has already been issued against the accusedapplicant and a proclamation under Section 82 Cr.P.C. has been made and also the process under Section 83 Cr.P.C. is completed and on this very ground, holding the anticipatory bail application

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as not maintainable, it was rejected by the Sessions Judge, Meerut.

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The present matter has two aspects. The first aspect, as revealed above, places the accused-applicant in the category of a proclaimed offender and this fact takes this Court to the relevant laws governing the matter where anticipatory bail has been denied to such an accused, who has been declared proclaimed offender and punitive processes under Sections 82, 83 Cr.P.C. have been issued against him.

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The conduct of the applicant falls within the ambit of the law promulgated by Hon'ble Apex Court in Prem Shankar Prasad Versus State of Bihar and Another, 2021 SCC OnLine Supreme Court 955 . In the facts of the case, charge-sheet was filed under Sections 406, 420 IPC against the accused and thus it was explicit that a prima facie case against the accused was found. From the record, it reveals that the arrest warrant was issued by the Magistrate against the accused and thereafter proceedings under Sections 82, 83 Cr.P.C. had been initiated pursuant to the order passed by the Magistrate. Only thereafter the accused moved an application before the trial court for anticipatory bail, which was rejected by the Sessions Court. However, subsequently anticipatory bail was granted to the aforesaid accused by the High Court and when the matter came before the Hon'ble Apex Court, it was observed like this.

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"19. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that respondent No. 2 - accused is absconding and even the proceedings under sections 82-83 of Cr. P.C. have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to respondent No. 2 - accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under sections 82-83 of Cr. P.C. by simply observing that "be that as it may". The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually.

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20. In the case of State of Madhya Pradesh v. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section

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82 of Cr. P.C., he is not entitled to relief of anticipatory bail."

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Hence, the analysis of the first aspect of the matter ousts the accused applicant from the area of relief of anticipatory bail.

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The second aspect, as reveals from the perusal of the impugned order, takes this Court to the relevant provisions of Section 438 Cr.P.C., which starts like this —

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" 438. Direction for grant bail to person apprehending arrest. — (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence , he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely— (i) the nature and gravity of the accusation;

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(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

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(iii) the possibility of the applicant to flee from justice; and

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(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

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either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

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Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this subsection or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application."

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Thus, the provisions of Section 438 Cr.P.C. come into play when an application for anticipatory bail is moved by an accused apprehending his arrest in some non-bailable offence. As the opening words of Section 438 Cr.P.C. speak, an application for anticipatory bail may be filed only in case of a non-bailable offence, meaning thereby that if the offence is a bailable one, no anticipatory bail lies in respect thereof.

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If we go through the provisions of Section 138 of the Negotiable Instrument Act, we find that it is provided therein that a

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person, who commits an offence under Section 138 of the Negotiable Instrument Act, shall be punished with imprisonment for a term which may extend to two years and with fine, which may extend to twice the amount of the cheque or with both.

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Hence, the maximum period of imprisonment, which may be provided under Section 138 of the Negotiable Instrument Act, is of two years.

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The Court can also take note of the provisions of Section 143 of the Negotiable Instrument Act, which provide that -

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"143. Power of Court to try cases summarily. — (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

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Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:

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Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code."

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A perusal of the provisions of Section 147 of the Negotiable Instrument Act is also desirable, which provide that -

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"147. Offences to be compoundable. —Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable."

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It is explicitly clear from the perusal of the aforesaid provisions that the offence under Section 138 Negotiable Instrument Act is a bailable one which is not only capable to be

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tried summarily but may be compounded as well. Now the question arises whether the anticipatory bail application in respect of a bailable offence is even maintainable in itself or not.

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In the case in hand, the maintainability of the anticipatory bail application in itself is under question as to whether it is maintainable in respect of a bailable offence on the ground that the Court has issued a non-bailable warrant or processes under Sections 82, 83 Cr.P.C. against the accused.

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This statutory provision cannot be lost sight of the Court that if a non-bailable warrant or processes under Section 82 or 83 Cr.P.C. are issued against an accused in the case of a bailable offence, that does not alter the nature of the offence at all. Section 138 of the Negotiable Instrument Act is a bailable offence by Statute and it remains the same even if the accused absconds and punitive action is taken by the Court.

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In Joginder @ Jindi Vs. State of Haryana, 2008 (10) SCC 138, the Hon'ble Supreme Court has held as under.

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"Since the petitioner alleges that the offences charged are bailable offences, the High Court was not justified in holding that custodial interrogation was necessary. Section 438, Cr.P.C. in terms relates to non-bailable offences. Therefore, a Petition under Section 438, Cr.P.C. in relation to bailable offences is misconceived, even if it is accepted that alleged offences are bailable."

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In a judgment of Madras High Court in S. Kannan Vs. State, 2011 (1) MWN (Cr.) DCC 145 , it was pronounced that petition for anticipatory bail is not maintainable in a case falling under Section 138 of the Negotiable Instrument Act because offence is bailable. Merely because non-bailable warrant has been issued against the accused, same shall not convert bailable offence into one of non-bailable.

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On the basis of above legal position, I am of the view that the nature of a bailable offence is never altered on the basis of the fact that a non-bailable warrant or other punitive processes have been issued against the accused-applicant. A bailable offence remains the bailable one and never becomes a non-bailable offence to bring in the scope of filing of anticipatory bail application on apprehension of arrest for such offence.

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Hence, the analysis of second aspect also negates the scope of anticipatory bail in the matter in hand.

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In view of that, the present anticipatory bail application has no force, it is not maintainable and as such, is liable to be rejected.

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The anticipatory bail application is rejected .

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Registry to send copy of this order to the court concerned.

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Order Date :- 10.4.2023 ss

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Digitally signed by :- SANDEEP SHARMA High Court of Judicature at Allahabad

Pratyush Rajvanshi v. State of U.P. and Another

Case brief

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Pratyush Rajvanshi v. State of U.P. and Another

Case brief

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