The case is called out.
The present application under Section 482 Cr.P.C. is moved against the proceeding arisen from the complaint case no.4665 of 2017 under Section 138 of Negotiable Instrument Act, Police Station Gudumba, District Lucknow.
Looking into the materials placed on record, allegations made in the complaint case under Section 138 of N.I. Act, as to the issuance of cheque and on presentation before the bank having been dishonored by the bank are not denied. Further, the drawer of the cheque (the present applicant) is served with notice within time prescribed in Negotiable Instrument Act and thereafter, the complaint was filed. It appears from the perusal of the materials placed before the Court that learned Magistrate took cognizance of the offence under Section 138 of N.I. Act and issued summons to the present applicant for trial fixing date 09.10.2017. Thereafter, it appears from the record that despite the service of summons, the applicant did not appear before the Court, consequently, a bailable warrant was issued and a report was submitted by the police before the Court which reveals that bailable warrant was also served and in the police station, furnishing the bail bonds in assurance for appearing before the Court concerned, accused-applicant again did not appear before the Court and therefore, non-bailable warrant was issued vide order dated 15.07.2019.
On perusal of the allegations made in the application under Section 482 Cr.P.C., no where it is alleged that the Court had no power to proceed under Section 138 of N.I. Act or no cause of action has been ever accrued to the complainant-opposite party no.2 and there is no allegation that the court below has illegally proceeded with the matter without following the procedure. Even no allegation to the issuance of Non-bailable warrant on 15.07.2019 that the same was issued skipping procedural step for ensuring attendance as provided in Cr.P.C.
The only thing which the applicant apprehends as averred that he is not going to be heard and the matter will be decided against him. Obviously, his apprehension is baseless. In this complaint case after taking cognizance of the offence, summons are issued affording the opportunity to the accused for the trial of the case. Further, bailable warrants and non-bailable warrants are issued when despite the service of summons and bailable warrants the accused defaulted in making appearance before the Court and thereby he aborted himself the opportunity by avoiding the process of the Court served upon him to appear. However, the avenue is still open to appear before the court and face trial.
In view of the materials placed before the Court, it appears that there is nothing likely to the abuse of process on the part of complainant or that of the Court. None of the materials reflects illegality or irregularity committed by the Court in the proceeding so as to make affect adversely the ends of justice. Entire avenue is still upon for the trial and hearing of the accused-applicant, therefore, in view of the decision of Hon'ble Apex Court in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others reported in (2007) 12 SCC 1 in para27:-
"The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage."
There is no prima facie case made under Section 482 Cr.P.C. for quashing of the proceeding of the complaint case under Section 138 of N.I. Act, application is therefore, finds no force for invocation of the inherent and extra-ordinary power of the Court under Section 482 Cr.P.C. and is rejected.
However, in the interest of justice, keeping into the mind that despite several default on the part of applicant in defeating the process of the Court issued for the purpose of ensuring his attendance in the trial, if the accused-applicant is ready and willing to submit himself before the Court then his personal liberty should be protected.
In view of the aforesaid facts and circumstances, if the applicant appears and submits himself before the Court below where the complaint case no.4665 of 2017 under Section 138 of Negotiable Instrument Act, Police Station Gudumba, District Lucknow is running and applies for the bail within 15 days from the date of order, the Court below is directed to dispose of the same expeditiously for ensuring his presence in the trial. Accused-applicant is at liberty to move discharge application on all available factual or legal grounds at proper stage of the proceeding before the Court.
Meanwhile no coercive action will be taken pursuant to non-bailable warrant issued vide order of the Court dated 15.07.2019, within the aforesaid 15 days from the date of order or till the date accused-applicant appears/surrenders himself and applies for bail, whichever is earlier.
Order Date :- 27.9.2019 Saurabh