Allowed

The Managing Director v. Shivaji Vasant Patil

Karnataka HC2 Sept 2022CRL.P/101250/2020

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a Criminal Petition under Section 482 Cr.P.C. to quash the trial court's order rejecting an application for proclamation and stopping proceedings. The court held that the accused's failure to appear after summons and warrants justified issuing a proclamation to secure presence, not closing the case.

What did the court decide?

Impugned order dated 11.03.2020 rejecting application under Section 82 Cr.P.C. and closing proceedings under Section 258 Cr.P.C. set aside; proceedings restored to file.

The Managing Director Vs Shivaji Vasant Patil — Cheque Dishonour | Karnataka HC (2022)

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CRL.P No. 101250 of 2020

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON'BLE MS. JUSTICE J.M.KHAZI

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CRIMINAL PETITION NO. 101250 OF 2020 (482-)

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BETWEEN:

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THE MANAGING DIRECTOR, INDIAN CANE POWER LTD UTTUR, TQ: MUDHOL, DIST: BAGALKOTE, REP. BY ITS MANAGING DIRECTOR NOW AUTHORIZED OFFICER SRI.RAJAKUMAR S. KALLIGUDDI, AGE: 38 YEARS, OCC: SERVICE ICPL, R/O: UTTUR, TQ: MUDHOL, DIST: BAGALKOTE, 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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SHIVAJI VASANT PATIL AGE : 49 YEARS, OCC : CONTRACTOR OF TRANSPORTING OF SUGARCANE, R/O : MUDHAL, TQ : BHUDARAGAD, DIST : KOLHAPUR, STATE : MAHARASHTRA, PIN : 416202.

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…RESPONDENT

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(NOTICE TO RESPONDENT IS DISPENSED WITH)

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THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C. SEEKING TO QUASH THE ORDER OF REJECTION OF APPLICATION UNDER SEC. 82 OF CR.P.C. AND STOPPING OF PROCEEDINGS UNDER SECTION 258 OF CR.P.C. DATED 11.03.2020 IN C.C.

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CRL.P No. 101250 of 2020

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NO.454/2017 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE AND JMFC, MUDHOL, REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT, AND RESTORE THE COMPLAINT ON IS FILE.

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THIS PETITION COMING ON FOR ORDER THIS DAY. THE COURT MADE THE FOLLOWING.

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ORDER

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Being aggrieved by rejection of the application filed under section 82 of Cr.P.C., and also stopping further proceedings by invoking Section 258 of Cr.P.C., vide order dated 11.03.2020 in C.C.No.454/2017 on the file of the Additional Senior Civil Judge and JMFC, Mudhol, the petitioner, who is complainant before the Trial Court, has come up with this petition under Section 482 of Cr.P.C.

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The petitioner has filed a private complaint under section 200 of Cr.P.C., alleging offence punishable under section 138 of the Negotiable Instruments Act, 1881 (“N.I.Act” for short) against the respondent/accused contending that it is a Co-operative Society registered under the Societies Act, manufacturing crystal sugar. The service of respondent/accused was taken for supply of

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CRL.P No. 101250 of 2020

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labourers during the harvesting season. Respondent agreed to hire one truck for transporting sugarcane to the complainant-factory and received advance of Rs.4,50,000/-. However, he failed to fulfill his promise and when insisted to return the advance amount, he issued a cheque dated 08.07.2013 drawn on UCO Bank, Kolhapur Branch, Maharashtra State for a sum of Rs.4,50,000/-. However, when it was presented to the bank on 16.07.2013, it was dishonoured and returned with a covering letter dated 23.07.2013 stating that the respondent is not having sufficient funds in his account. Therefore, after issuing legal notice dated 20.08.2013 and on failure of respondent to comply with the requirements of the legal notice, a complaint is filed under section 200 of Cr.P.C., alleging offence punishable under section 138 of N. I. Act.

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It is further case of the petitioner that the Trial Court took cognizance and summons was issued. Since in spite of due service of summons the accused remained absent, bailable and non-bailable warrants came to be

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CRL.P No. 101250 of 2020

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issued. However, the concerned police have failed to execute the warrants and therefore, on 15.02.2020 he filed an application under section 82 of Cr.P.C. to issue proclamation. But vide the impugned order the trial Court not only rejected the said application, but also stopped the further proceedings under section 258 of Cr.P.C. Aggrieved by the same, this petition is filed.

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Before the trial Court, as the accused has remained absent after service of summons and also his presence could not be secured in spite of repeated issuance of non-bailable warrants, in the present case, the issue of notice to respondent-accused is dispensed with.

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During the course of arguments, it is submitted that when respondent-accused has intentionally evaded the process of the Court as provided under Section 82 of Cr.P.C., the complainant is required to get proclamation issued and proceed further in accordance with law. However, instead of granting prayer for issue proclamation, the Trial Court has abruptly closed the

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CRL.P No. 101250 of 2020

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proceedings by invoking section 258 of Cr.P.C. Failure to secure the presence of respondent-accused not on account of negligence on the part of the complainant but the concerned police have failed in discharging their responsibility, for which the complainant cannot be penalized. The abscondance of accused despite initiation of coercive steps is not a ground to invoke the provisions of Section 258 of Cr.P.C.

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Heard the arguments and perused the records.

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As evident from the order sheet, after recording

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the sworn statement of the complainant, the Trial Court has taken cognizance and issued summons to the respondent-accused. As per the order sheet dated 09.08.2018, the envelop through which summons has been sent was returned with an endorsement as addressee refused to receive the contents. Consequently, thereafter repeatedly non-bailable warrants were issued against the respondent-accused. Ultimately, on 15.02.2020, the learned counsel for the petitioner/complainant has filed an

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CRL.P No. 101250 of 2020

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application under section 82 of Cr.P.C. to issue proclamation. Vide order dated 11.03.2020, the Trial Court has rejected the application on the ground that the complainant has not taken any positive steps. The very fact repeated non-bailable warrants issued against the accused are not executed goes to show that intentionally the respondent/accused is evading the process of the Court.

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As evident from the order sheet, in spite of due service of summons, accused remained absent. Though complainant took steps repeatedly for issue of non-bailable warrants against the accused, they are not executed and consequently in spite of the matter pending since 2013, the presence of the accused could not be secured.

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However, on 15.02.2020, the learned counsel for complainant has filed application under section 82 of Cr.P.C., with a prayer to issue proclamation against accused. The Trial Court has chosen to dismiss the said application on the ground that the proclamation is also

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CRL.P No. 101250 of 2020

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sought to the very same address and that the complainant is not diligent in prosecuting the case. In addition, the Trial Court has also chosen to close further proceedings under section 258 of Cr.P.C.

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When summons is served and accused remains absent or where after appearing and securing bail he remains absent, his presence could be secured through non-bailable warrant. Where the court is convinced that the presence of the accused could not be served even through non-bailable warrant, section 82 of Cr.P.C., makes provision for issue of proclamation that the person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed and such Court may publish a written proclamation requiring him to appear at a specified place and time not less than 30 days from the date of publishing such publication. In case, after proclamation the accused failed to appear before the Court to answer the charges, then section 83 of Cr.P.C., makes provision for attachment of property of such person.

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CRL.P No. 101250 of 2020

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Therefore, in order to take further coercive

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steps, issue of proclamation is necessary. When the petitioner has sought for issue of proclamation, the proper course available to the Trial Court was to allow the application and proceed further in accordance with law. It may be true that the matter was pending for a long time. However, it is not a ground to reject the application filed by the complainant seeking issue of proclamation which would be in furtherance of further steps to be taken.

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The Trial Court has not only erred in rejecting the application filed by the complainant but also stopping further proceedings under section 258 of Cr.P.C., which is available only in those summons cases, which are instituted otherwise than upon a complaint. In the present case the proceedings initiated by the complainant are based on complaint filed under Section 200 of Cr.P.C. Thus for the above reasons, I hold that the impugned order is not tenable and it is liable to be set aside and accordingly,

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I proceed to pass the following:

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CRL.P No. 101250 of 2020

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ORDER

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The petition filed under section 482 of Cr.P.C., is allowed.

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The impugned order dated 11.03.2020 in C.C.No.454/2017 on the file of the Additional Senior Civil Judge and JMFC, Mudhol, rejecting application filed under section 82 of Cr.P.C., and closing further proceedings under section 258 of Cr.P.C., is set aside.

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The proceedings are restored to the file with a direction to proceed by considering the application filed by the complainant under section 82 of Cr.P.C.

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In view of disposal of the matter, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

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Sd/JUDGE

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AC/YAN

The Managing Director v. Shivaji Vasant Patil

Case brief

What is this about?

What did the court decide?

The Managing Director v. Shivaji Vasant Patil

Case brief

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