Pawan Moudgil vs State of Punjab

K.S. Kumaran, J.

Heard counsel for both sides.

A complaint under Section 138 of the Negotiable Instruments Act is pending against the petitioner. The petitioner has been summoned to appear. On 20.7.1999 the petitioner was not present before the Court, but an application was moved with a medical certificate for exempting the presence of the accused for that day. The said application was dismissed by the learned Magistrate. The Learned Magistrate also ordered for the issuance of arrest warrant to secure the presence of the petitioner. The petitioner filed an application under Section 438 Cr.P.C. for bail in anticipation of arrest. But the learned Additional Sessions Judge, Ludhiana, also dismissed his application. That is why the petitioner has approached this court with this petition under Section 438 Cr.P.C.

The learned counsel for the petitioner contends that along with his application he had also attached the certificate of the Doctor (copy annexure P3) showing that he was suffering from fever and was advised bed rest from 17.7.1999 to 23.7.1999, and therefore, the petitioner''s presence on that day should have been exempted. The learned counsel for the petitioner, therefore, contends that since there was genuine reason for the absence of the petitioner on that day, the petitioner should be granted bail. I agree with the learned counsel for the petitioner in this respect. The petitioner has presented the Doctor''s certificate also along with his application seeking exemption from appearance and there was no reason to doubt the genuineness of the Doctor''s certificate. But the learned counsel for the complainant on the other hand contends that the offence under Section 138 of the Negotiable Instruments Act is a bailable offence and, therefore, this application under Section Cr.P.C. for anticipatory bail is not maintainable at all. But we have to see that the learned Magistrate issued arrest warrant and not a bailable warrant. Therefore, in these circumstances, it cannot be stated that this application under Section 438 Cr.P.C. is not maintainable.

Ultimately this petition is allowed.

If the petitioner is sought to be arrested in pursuance of the warrants of arrest issued in the complaint case Anil Chopra v. M/s Cotton Care and another, pending before Judicial Magistrate Ist Class, Ludhiana, the petitioner is ordered to be released on bail on his furnishing sufficient surety to the satisfaction of the arresting officer/concerned Court.

However, he shall abide by the provisions of Section 438(2) Cr.P.C.