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2011 DIGILAW 715 (UTT)

RAJEEV CHATURVEDI v. VARUN AGARWAL

2011-12-09

PRAFULLA C.PANT

body2011
JUDGMENT Hon’ble Prafulla C. Pant Heard. 2. By means of this petition moved under section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has sought quashing of the order dated 12.08.2011, passed by Judicial Magistrate, Kashipur, in criminal complaint case no. 2148 of 2010, Varun Agarwal vs. Rajeev Chaturvedi, whereby said court has directed to issue non bailable warrants against the petitioner (accused) Rajeev Chaturvedi, and further directed to recover the amount of the bond executed by him earlier. Also order dated 14.11.2011, passed by the Sessions Judge, Udham Singh Nagar, in criminal revision no. 172 of 2011, is challenged whereby the order of the Magistrate is affirmed. 3. Learned counsel for the petitioner submitted that it is a case of 138 of Negotiable Instruments Act, 1881, and the petitioner Rajeev Chaturvedi (accused) lives in Lucknow. He is facing trial at Kashipur. It is further submitted that the trial court has erred in law by not only issuing non bailable warrant against the petitioner, but also directing that amount of bond be recovered from him without following procedure prescribed under Section 446 Cr.P.C., which he executed earlier when bail was granted. 4. Having heard learned counsel for the petitioner, and after going through the papers on record, this Court finds that since the petitioner was admittedly absent on 12.08.2011, i.e., the date fixed in the case, the Magistrate committed no error of law in issuing non bailable warrants against the accused after canceling the bail. However, it appears that the Magistrate has erred in law by further directing in the same breath to recover the amount of bond without resorting to the procedure prescribed under section 446 of Cr.P.C., as in the case of forfeited bond the person concerned is required to be given notice to explain his conduct as to why the recovery be not made from him, and in the cases where sufficient reasons are shown, remission is granted to full or part of the amount of the bond. 5. For the reasons as discussed above, this petition under section 482 Cr.P.C., is disposed of with the direction that the order of recovery of amount mentioned in the bond is quashed leaving it open for the trial court to proceed under section 446 Cr.P.C., if felt necessary. 5. For the reasons as discussed above, this petition under section 482 Cr.P.C., is disposed of with the direction that the order of recovery of amount mentioned in the bond is quashed leaving it open for the trial court to proceed under section 446 Cr.P.C., if felt necessary. It is further observed that if the petitioner Rajeev Chaturvedi surrenders before the court concerned on the next date fixed in the case pending before the trial court, his bail application shall be heard and disposed of without unreasonable delay keeping in mind the nature of offence and the fact that he is resident of Lucknow i.e., far away from Kashipur.