Geetha Ramachandran vs S. Ravichandran

A. Packiaraj, J.—This revision has been filed against the orders passed in C.M.P. No. 2675 of 1999 in CC.No. 330 of 1996, dated

17.11.1999, on the file of the District Munsif cum Judicial Magistrate Ambattur, refusing to declare the respondent herein as a proclaimed

offender, as contemplated u/s 82 of the Cr.P.C.

The circumstances under which the said petition has come to be filed before the Court below is as follows :-

(a) The respondent had borrowed a sum of Rs.75,000 from the complainant, the petitioner herein, as loan. Towards, the discharge of the liability,

the accused issued a cheque dated 30.1.1996, drawn on Indian Overseas Bank, Mayiladuthurai for the said amount, in favour of the complainant.

When the same was presented, it was returned on account of insufficiency of funds.

(b) After observing all the mandatory provisions contemplated under the Negotiable Instruments Act, prosecution was launched for offence u/s

138, Negotiable Instruments Act, against the respondent herein.

(c) The respondent appeared before the Court and received the summons. Copy of the complaint was furnished to the respondent. Thereafter the

trial commenced. The complainant has examined two witnesses on his side and the proceedings went on till 25.3.1997, after which period, the

accused had not appeared before the Court. Hence a non bailable warrant was issued against the accused. But the same could not be served.

Hence the petitioner was constrained to file a petition u/s 82, Cr.P.C. to declare the accused as a proclaimed offender"".

The learned Magistrate having entertained the petition, dismissed the same observing thus:-

... if a person (accused) departs from his place or remains in it, if he conceals himself, will not amount to abscond and that a person is absent he

should not be readily available that he is an absconder without due enquiry and notice"".

I am not able to understand what really the Magistrate means thereby. It is seen from the records that non bailable warrant was issued against

the accused as early as 25.3.1997. After that the accused did not attend the Court. On going through the records, I see that till 16.3.1998, petition

u/s 317, Cr.P.C. had been filed on behalf of the accused/respondent and the matter was posted subsequently for examining him u/s 313, Cr.P.C.

From that date onwards, he made himself scarce. The non bailable warrant taken by the police concerned has been returned with an endorsement

the accused has gone abroad"". The concerned Village Administrative Officer, Koranadu, has also appended a certificate to the above aspect.

Hence having waited for three years, the petitioner has filed an application u/s 82, Cr.P.C. After the dismissal of the said petition by the learned

Magistrate the present revision has been filed before this Court.

This Court on several occasions issued notice to the respondent but the same could not be effected as the accused made himself scarce. Hence

the learned counsel was directed to take private notice, which also proved futile. Thereafter, this Court had issued warrant, to be executed on the

accused through Inspector of Police, Mayiladuthurai, in whose jurisdiction the accused was said to be living. The office concerned had submitted

that the accused was employed in Indian Overseas Bank, Koranadu Branch and he has left his services and could not be traced. His whereabouts

are still unknown. This Court has been periodically adjourning the matter so that the warrant issued could be served on the respondent. But the

same could not be served. However the report of the Sub Inspector of Police discloses that his wife and children are living in the same address but

would not give any details of the respondent''s whereabouts. In such circumstances, I have no hesitation to hold that the respondent is actually

absconding.

The learned counsel for the petitioner persuaded this Court to hold that the respondent is a proclaimed offender, since he is deemed to. be

absconding for such a long time, evading the due process of law. In support of her arguments, she placed reliance on a full bench judgment of the

Madras High Court made in K.T.M.S. Abdul Cader and Others Vs. The Union of India, : where in Their Lordships have stated that if the accused

have left India and if they continue to remain outside India, with a view to defeat or delay the execution of the detention orders, they have to be

taken as absconding persons. Their Lordships in clear terms have explained the word ""abscond"" to mean ""when a person is hiding from his place

of residence, he is said to be absconding"". A person may hide even in his place of residence or away from it and in either case he would be

absconding.

Wharton''s Law Lexicon, 14th Edition, ""abscond"" had been taken to mean to fly the country in order to escape arrest for crime. Similarly,

persons who have already left the country without the knowledge of any action to be taken against them under the Act, but who continue to remain

outside the country with a view to avoid any law to be enforced against them is said to be absconding.

The word absconding in Chambers''s Twentieth Century Dictionary, means to hide or to quit the country in order to escape a legal process.

Therefore, if a person, before the legal process could be issued somehow or other comes to know of the issue of such a process and quits the

country he can be said to have absconded.

In the present case, the accused having taken part in the proceedings till the prosecution was closed and when he was about to be examined

u/s 313, Cr.P.C., he made himself scarce. Enquires made by the Sub Inspector of Police and the Village Administrative Officer, in pursuance of

the directions given by the Court, has come to a conclusion that he has gone abroad and though his wife and children were present at the house,

they had declined to give any information about his whereabouts. The respondent was working as an accountant in the Indian Overseas Bank,

Koranadu Branch and his whereabouts was verified in his bank also and they had reiterated that he had left his job and the bank officials could

give no more information.

Therefore, in such circumstances, I have every reason to believe that the respondent is absconding and to declare him as a proclaimed

offender. Hence, I set aside the order of the learned Magistrate and direct him to pass an order u/s 82 Cr.P.C. and give other directions, as

contemplated under the other provisions of the Cr.P.C. Accordingly, this revision is allowed. The Magistrate is directed to comply with the orders

within 15 days from the date of receipt of a copy of this order.