Atul Sen vs State

Anoop Chitkara, J

The petitioner, who is undergoing trial in a complaint filed for dis-honour of cheque amounting to Rs.6,68,000/- (Rs.Six lacs, sixty eight thousand

only), and when the trial was fixed for arguments failed to put in appearance in the Court, forcing the learned Trial Court to order registration of FIR

under Section 229 of IPC, has come up before this Court seeking quashing of the impugned orders.

The complainant Shri Girish Chauhan filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 seeking prosecution of

the petitioner Shri Atul Sen for dis-honour of two cheques.

As per the complaint, the petitioner-accused had handed over two cheques, first dated 10.2.2012 drawn for Rs.2,84,000/- (Rs.Two lacs and eighty

four thousand only) in favour of Shri Girish Chauhan and second dated 15.2.2012 drawn for Rs.3,84,000/- (Rs.Three lacs and eighty four thousand

only) in favour of Shri Girish Chauhan.

Both these cheques were drawn from the account of the petitioner-accused in H.P State Cooperative Bank Ltd, The Mall, Shimla. Vide

memorandums dated 23.2.2012, the HP State Cooperative Bank Ltd. Informed the drawee of the cheque Shri Girish Chauhan that they could not

honour the cheques because of the insufficient balance in the bank account of Shri Atul Sen, the drawer. Failure to pay the money pursuant to the

legal notice led to filing of the criminal complaint.

Learned Judicial Magistrate 1st Class, Shimla took cognizance of the complaint vide order dated 19.4.2012. The ordinary modes of process to serve

the accused failed, leading to issuance of Non-bailable warrants dated 24.12.2012. The order dated 5.1.2013 reveals that the accused put in

appearance and represented through a counsel and furnished requisite bonds. After that the notice of acquisition was put; trial proceeded and after the

completion of the evidence, the accused in his statement under Section 313, Cr.PC dated 5.12.2014, and supplementary statement dated 2.4.2015

denied any liability, and stated that he did not purchase any apples from the complainant.

After the recording of the statement under Section 313 Cr.PC, the matter was posted on 6.5.2015, wherein the defence evidence was closed on the

statement of the learned counsel for the accused. After that, on 20.5.2015, the accused was present and sought time to furnish bail bonds under

Section 437-A, Cr.PC. Subsequently on 25.5.2015, further time was sought on behalf of the accused and after that, neither the accused nor his

counsel put in appearance.

On 25.2.2016, the learned Trial Court initiated proceedings under Section 446, Cr.PC for forfeiture of the bonds amount. Vide separate order of

even order, the court also directed the SHO of the concerned Police Station to register the FIR under Section 229, IPC. Both the orders dated

25.2.2016 are extracted as follows:-

“25.02.2016 Present: SH. Giri Raj Chauhan, Ld. counsel, for the complainant.

None for the accused.

Private complaint pertains to the year 2012 in which vide order dated 24.8.20165, concerned SHO was directed to lodge FIR u/s 229 IPC but till date

no report qua this has been sent this court. Let SHO concerned be directed to comply the previous direction returnable for 30.04.2016.

Sd/-

Addl.Chief Judicial Magistrate

Court No.2, Shimla, H.P.â€​

“25.02.2016 Present: Sh. Giri Raj Chauhan, Ld, Counsel for the complainant.

None for the accused.

It appears that accused by jumping his bail bond has allowed itself for forfeiture and cancellation his bail bond in favour of the State of H.P. which

means that he has violated the contract with the State to secure his regular presence and this in the considered opinion of this court once the

proceeding u/s 446 Cr.P.C initiated against him only today for the sake of natural justice, he has again sent a notice to appear and contest the

proceedings, however, under the peculiar circumstances where such natural justice may be required given to the surety as he has no direct knowledge

qua ongoing proceeding before the court, serving renotice to the accused shall have effect of filing the entire mandate of section 446 Cr.P.C and 421

IPC. Rather as per intention of the legislature as soon as accused jumps his bail bond, court does not require to reserve him and can straight away

authorize the DM/District Collector to realize the bond amount by attaching his movable or immovable property as furnished by accused at the time of

furnishing bail bond as if it is land revenue and thus this court hereby vague further service of the respondent/accused and direct the criminal Ahlmad

to send jamabandi or other solvency papers to the District Magistrate/DC to the categorical direction under section 421 IPC authorizing him or to other

delegated agency to attach the said property to realize bond amount as it is land revenue.

Note: In veriably, it comes to the knowledge of the court that concerned Collector of the delegated agency after attachment further seeks direction

from the court which cause unnecessary delay in the matter as under section 421 of IPC is evident in itself authorizing the same not only to attach but

also to sale by way of public auction keeping in view the relevant provision and chapter under the H.P Land Revenue Act 1954 relating to realization

of arrears of rent returnable for 30.04.2016.

(sd/-)

Additional Chief Judicial Magistrate

Court No.2, Shimla, H.P.â€​

Subsequently on 18.6.2016, the Court observed that it did not receive any communication regarding registration of FIR under Section 229, IPC and

the Court issued the notice to the concerned SHO to disclose, whether the FIR under Section 229, IPC has been registered in compliance to the order

dated 25.2.2016 or not.

Vide order dated 12.10.2017, fresh notice was issued to the concerned SHO to disclose whether FIR has been registered under Section 229, IPC,

as ordered on 25.2.2016 or not. Similar order was again passed on 15.12.2017 and 4.9.2018.

Vide order dated 20.12.2018, learned Additional Chief Judicial Magistrate, Court No.2, Shimla passed the following orders:

 “20.12.2018 Present: Sh.G.R. Chauhan, Adv, for the complainant.

Report received from the SHO Boileauganj that they have not registered any FIR under Section 229 A IPC against the accused. As per the letter

they have not received the order dated 24.8.2015.

Criminal Ahlmad is directed to send the copy of order dated 24.8.2015 to the SHO Boileauganj for registration of FIR against the accused under

Section 229 A of IPC. Let Tehsildar (recovery) be directed to recover the remaining amount under Section 421 Cr.PC and remit the same to this

Court for 25.2.2019.

(sd/-)

Additional Chief Judicial Magistrate

Court No.2, Shimla, H.P.â€​

The major twist, which can be noticed here is that the initial order dated 25.2.2016 was for registration of FIR under Section 229, IPC, whereas

vide order dated 20.12.2018, the direction was to register the FIR under Section 229A, IPC. In fact, the earlier order appeared to be a typographical

error by omission of letter ‘A’. It appears that realizing the mistake, the learned Additional Chief Judicial Magistrate, Court No.2, Shimla passed

practically a fresh order directing the registration of FIR under Section 229A of IPC. In fact, the petitioner has to be aggrieved by the order dated

20.12.2018 and not the previous order. Be that as it may, the learned Additional Chief Judicial Magistrate, Court No.2, Shimla had corrected the

mistake of his predecessor by issuing the fresh directions. Thus, this petition, which seeks quashing of order dated 25.2.2016 and 12.10.2017 does not

survive because by order dated 20.12.2018, practically new direction was issued to register FIR under Section 229A, IPC.

A bare reading of Section 229 IPC reveals that the order dated 12.10.2017 cannot be for registration of FIR under such Section. Therefore, if any

FIR stands registered under Section 229 IPC, then that is ordered to be closed.

Given above, the present petition wherein the prayer is to quash orders dated 25.2.2016 and 12.10.2017 would not lie. Although in the prayer

clause, the petitioner clarifies that vide these two orders, direction was to register the FIR under Section 229A of IPC, whereas a perusal of these two

orders would reveal that direction was to register FIR only under Section 229 IPC, which was probably never registered. Thus the petitioner may file

fresh petition challenging the order dated 20.12.2018 and subsequent orders, wherein a specific direction was issued by the learned Additional Chief

Judicial Magistrate, Court No.2, Shimla to register the FIR under Section 229 A, IPC.

The rule of the thumb is that as a painting cannot exceed the canvass, similarly, the relief cannot exceed the prayer clause. In the light of the

above discussion, this petition is closed as not maintainable in the present prayer clause. Liberty is given to the petitioner to challenge the order dated

20.12.2018 and subsequent orders, which led to registration of FIR under Section 229 A, IPC, if any.

Accordingly, this petition stands disposed of along with pending application(s), if any. Registry is directed to return the records to the concerned.