Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 1593 (JHR)

Mayur Adeshra v. State of Jharkhand

2016-11-24

S.N.PATHAK

body2016
ORDER : Heard learned counsel for the parties. 2. In this application, the petitioner has prayed for quashing the order dated 21.11.2015 passed by learned Judicial Magistrate Ist Class, Jamshedpur in connection with Complaint case No. 2384 of 2014 whereby bail bond of the petitioner has been rejected and NBW has been issued against the petitioner in a composite order. 3. It appears from the complaint that the complainant is a proprietary firm represented by its proprietor Anil Kumar Sahu, who was known to the petitioner since before. It is alleged that complainant had placed an order to purchase gem stones from the accused for which the accused had also received a total sum of Rs. 20,000/as an advance. Thereafter petitioner had issued two receipts/advance vouchers dated 16.08.2013 bearing nos. 0036 and 0037 against the order nos. 336/1314 and 337/1314 respectively, acknowledging the receipt of sum of Rs. 10,00,000/- only, from the complainant firm and the petitioner had also issued two more receipts/advance vouchers for Rs. 5,00,000/- only, each dated 16.08.2013 in the name of the proprietor Mr. Anil Kumar Sahu acknowledging receipt of the same by the petitioner. When the petitioner could not supply gem stones even after lapse of 9 months, the complainant asked him to refund the advance amount. The petitioner issued one cheque in favour of the complainant and two cheques in favour of proprietor of the firm and further promised to repay the balance amount of Rs.2 Lacs. in cash. The cheques so issued got dishonoured due to insufficient fund. Being aggrieved the complainant served legal notice to the petitioner through its lawyer. When in spite of service of legal notice the petitioner did not return the amount, the complainant filed instant complaint. 4. Learned counsel for the petitioner submits that petitioner has been falsely implicated in the instant case. It is further submitted that petitioner being a law abiding citizen, surrendered before the court below and was granted bail vide order dated 22.10.2014. There was no previous order for physical presence of the petitioner and the case was fixed for evidence. Though the petitioner filed application under Section 317 Cr.P.C. but without giving any further chance, his bail bond has been cancelled and non-bailable warrant of arrest has been issued without giving him any opportunity. There was no previous order for physical presence of the petitioner and the case was fixed for evidence. Though the petitioner filed application under Section 317 Cr.P.C. but without giving any further chance, his bail bond has been cancelled and non-bailable warrant of arrest has been issued without giving him any opportunity. Learned counsel for the petitioner further submits that though the petitioner was physically present on 15.01.2015 before the learned court below on the point of substance and, thereafter, there was no such order for his physical presence. It is further pointed out that on 20.04.2015, a petition has been filed on behalf of the petitioner for issuance of production warrant as he was in judicial custody in connection with G.R. Case No. 1122 of 2014 and the same was allowed but it is nowhere mentioned as to whether petitioner has been produced or not. It is further pointed out that petitioner was ill from 26.08.2015 to 30.11.2015 and upon advise of the doctor he was unable to appear before the court below. The learned counsel for the petitioner further submitted that the learned Magistrate while rejecting the representation under Section 317 of the Code of Criminal Procedure, cannot, at the same time, cancel the bail bond and issue non-bailable warrant of arrest, if on the preceding date, it has not clearly directed that personal attendance required under Section 317 of the Cr.P.C. had no longer dispensed with, but here in the present case, the learned trial court has passed the composite order in violation of the provisions of Section 317 of the Code of Criminal Procedure. Therefore, it is submitted that the order passed by the learned Magistrate is very harsh and also against the principle of law. It is further submitted that the petitioner is ready and willing to cooperate in the trial and shall remain present before the Court below as and when required and will abide by the conditions that may be imposed while granting bail and therefore, he may be allowed to continue on the same bail bond. In support of his contentions, the learned counsel for the petitioner has referred to and relied upon the judgment rendered in the case of Tijan Musahar @ Jitan Musahar Vs. The State of Bihar & Ors., reported in 2011 (3) PLJR 286 and Shaukat Ali Khan and others Vs. In support of his contentions, the learned counsel for the petitioner has referred to and relied upon the judgment rendered in the case of Tijan Musahar @ Jitan Musahar Vs. The State of Bihar & Ors., reported in 2011 (3) PLJR 286 and Shaukat Ali Khan and others Vs. State of Jharkhand and Another reported 2012(2) East Cr. C. 52 (Jhr.) 5. Learned counsel for the State submitted that since the petitioner did not remain present before the Court below on the date so fixed and therefore appropriate order was passed by the Court to secure presence of the petitioner-accused person. It is further submitted that no illegality has been committed by the Court below while passing such order and the purpose of passing of such order is to secure the presence of the petitioner at the time of trial so that trial can proceed further and the purpose of granting bail may not be frustrated. 6. Considering the aforesaid rival submissions and also on perusal of the papers, it transpires that the present petition is filed being aggrieved and dissatisfied with the order passed by Judicial Magistrate Ist Class, Jamshedpur in Complaint case No. 2384 of 2014, I found substance in the arguments advanced by the learned counsel for the petitioner that the learned Magistrate while rejecting the representation under Section 317 of the Code of Criminal Procedure, cannot, at the same time, cancel the bail bond and issue non-bailable warrant of arrest, if on the preceding date, it has not clearly directed that personal attendance required under Section 317 of the Code of Criminal Procedure, had no longer dispensed with but here in this case, has passed the composite order, which is in contravention of the provisions contained in Section 317 of the Code of Criminal Procedure. Therefore, having regard to the facts and circumstances of the present case and more particularly, in view of the fact that on earlier occasions, the petitioner has remained present before the court below and as submitted by the learned counsel for the petitioner, the petitioner is ready and willing to cooperate in the trial and shall remain present as and when required by the Court below during the course of trial and also in view of ratio laid down in the judgment rendered in the case of Tijan Musahar @ Jitan Musahar Vs. The State of Bihar & Others, reported in 2011 (3) P.L.J.R 286, cited by the counsel for the petitioner, which covers the case of the petitioner, the order dated 21.11.2015 passed by the learned Judicial Magistrate,1st Class, Jamshedpur in Complaint Case No. 2384 of 2014 is liable to be quashed and set aside. 7. Accordingly, the order dated 21.11.2015 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur in Complaint Case No. 2384 of 2014 is hereby quashed and the petitioner is directed to cooperate in the trial and shall remain present before the court below as and when his presence is required. It is further clarified that petitioner may be allowed to continue on the same bail bond. 8. With the aforesaid observations and directions, this criminal miscellaneous petition stands disposed of.