Sanjay Sharma vs Kashmir Singh And Another

Bipin Chander Negi, J

In the case at hand, initially a complaint under Section 138 of the Negotiable Instruments Act was filed in the Court of learned Chief Judicial Magistrate, Mandi in the year, 2010. The cheque amount in the case at hand is Rs.10,00,000/- (Ten lacs only).

Thereafter, the case file was received by learned Chief Judicial Magistrate, Kullu, in the year, 2017. Summons issued to the accused repeatedly since the year, 2017 till 2021 could not be served. Subsequent thereto, bailable warrants were issued against the accused/petitioner up till the year 2022. Despite issuance of bailable warrants, presence of the petitioner/ accused could not be procured. The petitioner/accused failed to appear before the Court and further failed to furnish bail bonds to the satisfaction of the Court.

Finally, on 29.10.2022, the trial Court ordered issuance of non bailable warrants to secure presence of the present petitioner/accused before the trial Court. On issuance of non bailable warrants rather than putting in appearance before the trial Court and filing an application for cancellation of non bailable warrants so issued, the petitioner/accused preferred a revision petition before the Sessions Judge, Kullu.

The Revisional Court dismissed the revision petition, so filed by the petitioner/accused against the issuance of non bailable warrants. While dismissing the revision, the Revisional Court observed that the petitioner/accused should have appeared before the trial Court and sought cancellation of the non bailable warrants.

On taking recourse to such action, if his application had been dismissed or had he been sent to judicial custody, in that eventuality, the Revisional Court correctly held that the petitioner/accused could have moved a revision petition. Since in the case at hand, no application has been filed before the trial Court nor has the petitioner/accused appeared before the trial Court, hence, the Revisional Court correctly held that the petitioner/accused has failed to prove on record the fact that learned trial Court has wrongly and illegally issued warrant of arrest against the petitioner/accused.

The present petition has been preferred under Section 482 of the Code of Criminal Procedure, i.e., inherent powers of the High Court. Power under Section 482 of the Code of Criminal Procedure is an extra ordinary power to be exercised sparingly carefully and with caution. The said power is to be exercised only when there is no other remedy available to the litigant. Since in the case at hand, as has been correctly pointed out by the Revisional Court, there is a specific remedy available to the present petitioner.

Further, entertaining of the present petition, rather than preventing the abuse of process, would actually delay the trial, ultimately resulting into miscarriage of justice. In the case at hand, a speedy efficacious remedy available to the complaint under Section 138 of the Negotiable Instruments Act has already been prolonged by the petitioner by successfully evading service of summons/bailable warrants. The present petition, rather than securing the ends of justice, would be promoting an abuse of process.

In view of above, there is no merit in the present petition and the same is dismissed accordingly.

Pending miscellaneous application(s), if any, shall also stand disposed of.