Partly allowed

The Managing Director v. Vikas Sahebrao Ahire

Karnataka HC18 Nov 2020CRL.P/101275/2020

Case brief

AI extract

What is this about?

The High Court allowed the petition in part, setting aside the order stopping criminal proceedings under Section 258 Cr.P.C. The court permitted the petitioner to furnish the accused's correct address within 10 days for re-issuance of process.

What did the court decide?

Impugned order stopping proceedings under Section 258 Cr.P.C. partly set aside; petitioner permitted to furnish correct address of accused within 10 days.

The Managing Director Vs Vikas Sahebrao Ahire — Civil Procedure and Limitation | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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CRIMINAL PETITION NO.101275/2020

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BETWEEN:

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The Managing Director, Indian Cane Power Ltd Uttur, Tq. Mudhol, District Bagalkot, Rep. by its Managing Director, Now Authorized Officer Sri. Rajakumar S. Kalliguddi, Age 38 years, Occ: Service ICPL R/o. Uttur, Tq. Mudhol, District Bagakot, Pin: 587313.

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... Petitioner

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(By Sri. Bahubali N. Kanabargi, Advocate)

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AND:

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Vikas Sahebrao Ahire, Age 42 years, Occ: Contractor of Harvesting and Transporting, R/o. Hiswal, Tq. Malegaon,

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...Respondent

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This Criminal Petition is filed under Section 482 of Cr.P.C., praying to quash the order of rejection of application

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Crl.P.No.101275/2020

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under Section 82 of Cr.P.C. and stopping of proceedings under Section 258 of Cr.P.C., dated 31.01.2020 in C.C.No.340/2017 on the file of Additional Senior Civil Judge and JMFC, Mudhol, registered for the offences punishable under Section 138 of Negotiable Instruments Act, and restore the complaint on its file.

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This petition coming on for Admission through physical hearing/video conferencing hearing this day, the court made the following:

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ORDER

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The present petitioner has challenged the order dated 31.01.2020 passed in C.C.No.340/2017 by the Additional Senior Civil Judge and JMFC Court, Mudhol (for brevity hereinafter referred to as ‘the trial Court’), rejecting his interlocutory application filed under Section 82 of Code of Criminal Procedure (for brevity hereinafter referred to as ‘Cr.P.C.’) and proceeding to pass order of stopping the further proceeding in the said C.C.No.340/2017 exercising power under Section 258 of Cr.P.C. by the trial Court.

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Crl.P.No.101275/2020

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The summary of the case of the petitioner in

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the trial Court is that, the petitioner had initiated a proceeding against the present respondent through a private complaint under Section 200 of Cr.P.C., alleging the offence punishable under Section 138 of Negotiable Instruments Act, 1881 against the respondent. The order sheet of the trial Court, the certified copy of which has been produced by the petitioner along with the petition would go to show that, initially the summons was served upon the accused which was ordered on 27.10.2017. However, due to the absence of the accused on 04.08.2018, Non-bailable Warrant (for brevity hereinafter referred to as ‘NBW’) was issued against the accused, but the same returned unexecuted. On 31.10.2018, once again NBW was issued to the accused through Superintendent of Police, Nasik, through Registered Post Acknowledgement Due (RPAD) and the same remained unreturned till 30.08.2019. On

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30.08.2019, once again NBW was issued through Superintendent of Police, Nasik, under Registered Post Acknowledgement Due, however, the same returned unexecuted stating that the accused was not residing at the given address. On 03.01.2020, the petitioner filed an application under Section 82 of Cr.P.C. praying to issue proclamation against the accused. However, giving the very same address of the accused for which the NBW returned un-executed showing that the accused was not residing at that address. The trial Court rejected the said application filed under Section 82 of Cr.P.C. reasoning that, the complainant has not been cooperating with the Court in ensuring the execution of NBW against the accused. It has also opined that, since the accused has not absconded, but due to non-taking of appropriate steps he could not be secured, the proclamation under Section 82 of Cr.P.C. cannot be issued. However, at the same time by exercising its

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power under Section 258 of Cr.P.C., the trial Court stopped all further proceedings in the said criminal case, before it. It is challenging the said order, the complainant has preferred this petition.

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The learned counsel for the petitioner now submits that, the complainant is very much hopeful of securing the correct, complete and present address of the accused, so that NBW if issued afresh against the accused, the same would definitely be executed against the accused, as such, in the best interest of justice one more opportunity be given to him.

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Notice to the respondent in this case is not

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ordered for the reason that, the said address of the respondent (accused) is the very same address for which the NBW has been returned unexecuted with the

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shara by the executing police that ‘the accused is not residing in the given address’ . Therefore, issuing the

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notice to the very same address where the accused is not residing would not serve the purpose.

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Added to the above and more importantly, the

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petitioner is now praying only for giving him one more opportunity of paying process and executing NBW against the accused for which he submits that, the complainant is hopeful of getting correct, complete and present address of the accused immediately. In the said circumstance, when the very matter in the trial Court was at the stage of execution of NBW and the criminal case is still pending in the Court below, I am of the view that the learned Magistrate of the trial Court ought to have given an opportunity to the petitioner to furnish the correct, complete and present address of the accused and to take fresh steps. Even for the said reason also, the issuance of notice to the present respondent to the address where he is not residing

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would not serve any purpose. As such, I am of the view that, with the said limited liberty, the impugned order be set aside. Accordingly, I proceed to pass the following order:

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ORDER

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The petition is allowed in-part. The order dated 31.01.2020 passed in C.C.No.340/2017 by the Additional Senior Civil Judge and JMFC Court, Mudhol is partly set aside to the extent of it stopping the further proceeding in C.C.No.340/2017 by exercising the power under Section 258 of Code of Criminal Procedure. The complainant before the trial Court (petitioner herein) is permitted to furnish the correct, complete and present address of the accused in the trial Court within 10 days from today and take appropriate steps. If appropriate steps are taken and necessary request is made, the trial Court may consider the same for re-issuance of Non-

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bailable Warrant against the accused at his present, correct and complete address, if furnished by the complainant, and in accordance with law.

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The Registry to transmit a copy of this order to the trial Court, forthwith.

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Sd/JUDGE

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*Svh/-

The Managing Director v. Vikas Sahebrao Ahire

Case brief

What is this about?

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The Managing Director v. Vikas Sahebrao Ahire

Case brief

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