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Shyjesh V.K vs Reena George

High Court Of Kerala · Decided on 4 July 2022 · Citation: (2022) 07 KL CK 0025

HON’BLE JUDGES
Dr Kauser Edappagath, J
ACTS & SECTIONS REFERRED
Code of Criminal Procedure, 1973 — Section 82, 83, 205 · Negotiable Instruments Act, 1881 — Section 138
RESULT
Disposed Of
CASE NUMBER
Criminal Miscellaneous Petition No. 3917 Of 2022
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Judgment

12 paragraphs · 402 words

Dr Kauser Edappagath, J

1.

This Crl.M.0 has been filed to quash the non bailable warrant dated 25.4.2022 issued by the court below to the petitioner.

2.

The petitioner is the first accused in C.C.No.154/2022 on the file of the Judicial First Class Magistrate Court II, Hosdurg.

3.

The  offence  alleged  against  the  petitioner  is punishable under Section 138 of the Negotiable Instruments Act.

4.

The  non  bailable  warrant  as  well  as  the  steps  under Sections 82  and 83  of Cr.P.0 are pending against the petitioner. According to the petitioner,  he is working in Behrin for the last so  many  years  and  no  summons  was  served  to  him.  Without serving a notice, the court below issued non bail warrant.

5.

I have heard Sri.Harish Gopinath,  the learned counsel  for  the  petitioner  and  Sri.P.G.Manu, the  learned  Senior  Public Prosecutor.

6.

Considering the nature of the order going to be passed,  I am of the view that notice need not be issued to the respondent Nos.1  and 2.

7.

The learned counsel for the petitioner submitted that no summons was served to the petitioner prior to the issuance of warrant and initiation of proceedings under Sections  82  and 83 of  Cr.P.C.  The  counsel  further  submitted  that  the  counsel  is prepared to appear on behalf of the petitioner at the court below and to file a petition under Section 205 of Cr.P.C.

8.

I have called for a report from the learned Magistrate. The learned Magistrate reported that notice issued to the petitioner was returned with an endorsement 'unclaimed'. However,  notice  was  issued  in the  address  of the  petitioner  in India. According to the petitioner, he is in Behrin in connection with his employment at the time of institution of the proceedings and  even  before  it.  In  these  circumstances,  it  cannot  be  said that the petitioner wilfully unclaimed the summons and there is  constructive service of the summons.

9.

In the light of the above facts, this Crl.M.0 is disposed of as follows:

i) The non bailable warrant dated 25.4.2022 issued  by  the  court  below  as  well  as  the  steps  under Sections 82 and 83 of Cr.P.0 initiated against the petitioner stands hereby quashed.

ii)  The petitioner shall appear at the court below through his counsel and file an application for exemption under Section 205 of Cr.P.0 within one month. The said application shall be disposed of by the court below in accordance with law.