Allowed

Mahesh Kumar v. Abhay Kumar

Rajasthan HC4 Jan 2019CRLMP/54/2019

Case brief

AI extract

What is this about?

Section 482 Cr.P.C. petition by an employee seeking attachment of his salary to satisfy a cheque dishonour claim. The High Court allowed the prayer, directing the State to attach Rs. 51,001 monthly and deposit it with the trial court for payment of dues.

What did the court decide?

Direction to State of Rajasthan to attach petitioner's salary of Rs. 51,001 per month and deposit it with the learned court below for payment of cheque amount.

Mahesh Kumar Vs Abhay Kumar — Cheque Dishonour | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN

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JODHPUR

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S.B. Criminal Misc. Petition No.54/2019

Mahesh Kumar

----Petitioner

Versus

Abhay Kumar & Anr.

----Respondent

For Petitioner(s) : Mr. Vinod Choudhary For Respondent(s) : Mr. VS Rajpurohit, Public Prosecutor

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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04/01/2019

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The defects pointed out by the office is overruled.

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The petitioner has preferred this misc. petition under Section 482 of Cr.P.C. for the following reliefs :

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“The salary of the petitioner i.e. Rs.51,001/- per month in EMP ID: RJNA199928003917 attached in pursuance of Criminal Case No. 138/2016 (Abhay Kumar Vs. Mahesh Kumar) pending before the concerned court below and the cheque-amount be deducted in pro-rate basis and the same be paid accordingly to the complainant and other persons, may kindly be attached.”

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The allegation in the present facts and circumstances requires only the assistance of the State of Rajasthan which learned Public Prosecutor accepts to render.

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With the consent of both the parties, the matter is finally heard.

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Brief facts of this case, as noticed by this Court, are that the complainant filed a case under Section 138 of Negotiable Instrument Act against the present petitioner, as he had borrowed certain amount from him and in lieu of the amount, gave cheque

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(2 of 4)

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bearing No .30454928212 of SBBJ, Branch Bhopalganj, Bhilwara of Account No.51046330594. The said cheques were dishonored and after giving the legal notice, the proceedings under Negotiable Instrument Act were initiated.

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Learned counsel for the petitioner accepts complete liability of the petitioner arising out of the cheque in question and does not wish to contest the Negotiable Instrument Act proceeding on merits.

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Learned counsel for the petitioner makes a limited submission that the petitioner is a regular Government servant and is serving on the post of Radiographer. It is also contended by learned counsel for the petitioner that the basic salary of the petitioner is Rs.50,800/-, DA Rs.4572/-, HRA Rs.4064/-, Mess Allowances Rs.250/-, SPI Pay Rs.1000/- and washing allowances Rs.150/- per month which comes to Rs.60,836/- per month.

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Learned counsel for the petitioner further states that out of gross salary of Rs.60,836, Rs.9,000/- are being deducted by the State of Rajasthan per month, as per the pay-slip of the petitioner. Thus, as per the learned counsel for the petitioner, the petitioner is drawing Rs.51,001/- per month, as indicated in the pay-slip of the petitioner for the month of October, 2018.

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Learned counsel for the petitioner further submits that there were certain compelling circumstances which resulted into the petitioner borrowing such huge amount and due to his inability to pay the same, the petitioner is facing the trial.

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Learned counsel for the petitioner does not press for prayer 2 & 3. It is also contended that petitioner is pressing only the prayer No.1, which reads as follows :-

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(3 of 4)

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“The salary of the petitioner i.e. Rs.51,001/- per month in EMP ID: RJNA199928003917 attached in pursuance of Criminal Case No. 138/2016 (Abhay Kumar Vs. Mahesh Kumar) pending before the concerned court below and the cheque-amount be deducted in pro-rate basis and the same be paid accordingly to the complainant and other persons, may kindly be attached.”

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Learned Public Prosecutor is not opposed to the prayer 1, as while representing the State of Rajasthan he appreciates the facts that the petitioner is a permanent Government employee of State of Rajasthan and attachment of his salary could be a good way of resolving his liabilities.

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Heard learned counsel for the parties and perusing the record of the case, this Court observes that the legislative intention of Negotiable Instrument Act was that the Negotiable Instrument, may be cheque once issued should be honored by the parties. Looking to the facts of the case, the petitioner seems to be a habitual offender but since the petitioner is readily accepting to get his pay attached for the purpose of necessary payments, it would be in the interest of justice that the petitioner is permitted to get his pay attached. On being asked, learned counsel for the petitioner has informed this Court that wife of the petitioner is also a Government servant, and therefore, the family will not face any crisis of subsistence.

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Thus, the present misc. petition is disposed of with a direction to the State of Rajasthan that the salary of the petitioner i.e. to the tune of Rs.51,001/- in EMP ID: RJNA199928003917 shall be attached and the same shall be deposited by the State of Rajasthan before the learned court below in first week of every month. The learned court below shall continue to disburse the salary received as attached, as per the dues to the respondent No.2 and the learned court below shall impose lawful interest on

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(4 of 4)

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the delayed payments due to the amount as per completion of delay. It is further made clear that the respondent No.2 shall be entitled to receive the lawful interest for the delayed payment, as per the satisfaction of the learned court below. The State of Rajasthan shall maintain the attachment to the salary account to the tune of Rs.51,001/- every month until the learned court below records its satisfaction that the complete amount has been paid in each of cases being decided today against the petitioner. In case, the respondent faces any difficulty in receiving the amount, the same shall be redressed by the learned court below.

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The petitioner shall be required to join the trial and if there is any default for his appearance, the learned court below shall be free to issue fresh arrest warrant against the petitioner. In future, if there is any dereliction on the part of the petitioner in remaining present and participation in the court proceedings, the learned court below shall be free to take all necessary steps including issuing of arrest warrant. The learned court below shall ensure that for all the delayed payments, the respondent is compensated by appropriate lawful interest, till the complete amount is finally paid. It shall be open for the learned court below to pass any order or to impose all necessary conditions to ensure the compliance of this order in right spirit.

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(DR. PUSHPENDRA SINGH BHATI),J

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Sanjay

Mahesh Kumar v. Abhay Kumar

Case brief

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What did the court decide?

Mahesh Kumar v. Abhay Kumar

Case brief

What is this about?

What did the court decide?

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