K. Satish Kumar vs The State

Sudershan Kumar Misra, J.

Crl. M.C. No. 4170/2014 & Crl. M.A. No. 14341/2014

This petition impugns the order passed by the court below on 08.08.2014 in C.C. No. 4514/10 in connection with a complaint lodged by the second respondent against the petitioner under Section 138 of the Negotiable Instruments Act in respect of a cheque of Rs. 20 lakhs allegedly issued by the petitioner on 08.01.2007 in favour of the respondent. A perusal of the complainant lodged by respondents 2 and 3 shows that the cheque in question was returned by memo dated 13.04.2007 on the ground that the same was dishonoured due to insufficient funds; and that notice in terms of Section 138 of the Act was served on the petitioner on 17.05.2007. It is, inter alia, the stand of the petitioner that, admittedly, the legal notice, stated to have been served by the complainant under Section 138 demanding payment, has been served only on 17.05.2007, even though the factum of the actual date of service of that notice has not been demonstrated even prima facie, in the sense that the acknowledgement card in proof of due service has not been exhibited despite the averment that the notice was served through the registered post.

It is also averred that certain talks were going on for arriving at a mutually acceptable settlement after the petitioner was summoned in the matter; and it had been adjourned from time to time for the purpose; and ultimately, the court below was pleased to issue non bailable warrants returnable on 14.10.2009 because, in the opinion of the court below, the petitioner was avoiding the court. In this behalf, it is contended by counsel for the petitioner that, in fact, repeated adjournments were sought by both parties on the ground that settlement was being explored, and even on 14.10.2009, there was no denial of this fact by counsel for the complainant or the complainant himself, who was present in court on that date. Further, it is contended that it was inappropriate for the court below to have taken recourse to secure the presence of the petitioner through iron bailable warrants in the first instance without even directing issuance of bailable warrants.

On the issue of address of the petitioner, counsel for the petitioner has referred to the orders passed by the Court below initially on 3rd March, 2008 where it was noted that process could not be served on the petitioner and was returned with the report, ''left that address''. Thereafter, the complainant''s submission that he has fresh address of the petitioner was noted by the Court, and the respondent/complainant was directed to the file fresh address with an amended memo of parties; and that the process be issued on that address. A copy of the amended memo of parties was then filed by the respondent/complainant on 25th March, 2008 which shows the then current address of the petitioner as 164, 2nd Main, first block, R.M.V. 2nd Stage, Banglore-94.

On 14th October, 2009 the Court below concluded that despite repeated adjournments no compromise has taken place between the parties; and since the exemption application moved through counsel for the petitioner before the Court for that date was not supported by a medical certificate, the same was dismissed; non-bailable warrants were issued, returnable for 21st December, 2009. Pursuant to this order, counsel for the complainant filed process fee indicating the address of the petitioner as 331, ''14th main, R.M.V. Extension, Bangalore-560080. The latter is, in fact, the previous address of the petitioner, which was originally mentioned in the complaint; and not the address in terms of the amended memo dated 21st December, 2008, and it is for this reason that the non-bailable warrants also could not be served on the petitioner. Even the proclamation issued under Section 82 Cr.P.C. carries the previous address. Similarly, all subsequent notices have also been sent to the same address. Further, even the statement of the process server, who was examined by the Court below on 24th September, 2013, recorded that he went and pasted the copy of the proclamation on the original address given on the complaint and not on the address mentioned in amended memo of parties dated 25th March, 2008. It is also clear that the proclamation order which was issued by the Court below on 24th September, 2013 was passed on the aforesaid statement of the process server.

Looking to the circumstances; and since the order impugned is merely aimed at securing the presence of the petitioner before the court on 30.09.2014, to my mind, there is no need to issue notice to the respondents/complainants. In this regard, counsel for the petitioner has relied on a decision of this Court in Praveen Juneja Vs. State of Delhi and Another, . Further, counsel for the petitioner states, on instructions, that the petitioner undertakes to appear in person before the court below on 30.09.2014.

Under the circumstances, I am satisfied that sufficient grounds are made out for setting aside the proclamation under Section 82 Cr.P.C.; which appears to have been erroneously issued in somewhat peculiar circumstances, and consequently, the same is set aside. The orders of the court below dated 14.10.2009 and 08.08.2014 to the extent that they direct issue of non-bailable warrants for the arrest and production of the petitioner before the court on that date, are also set aside. The petitioner shall duly appear before the court below on 30.09.2014, whereafter, it would be open for the court below to proceed as per law.

In addition, and as prayed, since the petitioner is stated to have shifted his residence from 331, 14th Main, R.M.V. Extension, Bangalore - 560080 to Flat No. 4, 3rd Floor. Nagappa Street, Sheshadri Puram, Bangalore 560020; as disclosed in a separate affidavit by him before this Court on 18th September, 2014; the said address shall also be taken on record by the Court below for all purposes. A copy of this affidavit shall also be placed by the petitioner before the Court below for convenience. The petition stands disposed of.