V.V. Venkateshan vs Lakshmi Sairam Traders

Jawad Rahim, J.—The petitioner, who is an accused facing charge for an offence u/s 138 of the N.I. Act has brought in question the legality of the order passed on 17.7.2014 by the learned II Addl. Civil Judge and J.M.F.C., Chikmagalur, directing issuance of NBW to the petitioner to secure his presence.

Learned counsel assertively contends that the order passed by the Magistrate issuing NBW is wholly illegal and therefore, it is vitiated. He gains citational support to his contentions in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, , where the Apex Court taking note of the prosecution for offences under Sections 420, 120B and 467 of IPC against the vendor of the property, opined that the criminal prosecution shall not be used as an instrument of harassment or for seeking private vendentta or with an ulterior motive to pressurize accused and taking note of the proceedings before the trial court, whereby a coercive process of issuance of NBW is issued has observed thus:

In the complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the courts proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

It is necessary to keep in mind, the law of precedents in the instant case. The Apex Court has taken serious note of the complainant harassing the adversary without any substantive material to proceed in criminal law. Taking note of paucity of material to justify prosecution, the Apex Court took a view that in the normal course where private complaint action is the basis, normally in the first instance, summons be issued, in the second instance, bailable warrant and in the third instance, non bailable warrant.

The Apex Court, summarizing such proposition undoubtedly has considered the frivolous nature of criminal prosecution that was been initiated and ultimately quashed. As could be seen from the conspectus of the provisions of Cr P.C., the law prescribes for issuance of NBW, when the accused, after service of summons or otherwise has failed to appear.

In the instant case, accused was duly served with summons in the first instance and he refused to appear and consequently, NBW is issued. Even for an action u/s 200 Cr.P.C., the provision enables the court to even issue NBW without summons. Therefore, when the question of legality is urged, we need to test in law the order, from the relevant provision. There is legal permissibility to issuing NBW even without summons and in case where the accused even after summons fail to appear, NBW is justified.

I am compelled to hold that the order impugned in this case does not suffer from any illegality and even applying the caution advanced by the Hon''ble Apex Court, I am of the opinion that the present case warranted such a cause. Hence, on that basis, the petition makes out no case to interfere with such an order.

At this stage, learned counsel submits that the petitioner-accused is from Tamil Nadu and he found it difficult to approach the trial court for recalling the warrant as he has to serve copy on the respondent-complainant. Such difficulty expressed by the learned counsel also does not appear to be a reason for entertaining this petition.

As is seen from the record, the respondent-complainant is represented by an advocate and therefore, service of copy on him would suffice as is permissible under the provisions of Criminal Rules of practice. Therefore, non approaching the trial court for efficacious relief of to recall warrant also does not justify admission of this petition. However, I am inclined to accept learned counsel''s request that he may be permitted to move the trial court to recall the warrant and consider the request most pragmatically. The case is said to be listed on 23.8.2014. Learned counsel is permitted to advance the proceedings which the trial court will permit and consider the application on the same day and recall NBW and give him opportunity to appear in the proceedings which are summons case and not warrant trial.

With this observations the petition is disposed.