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2016 DIGILAW 455 (JHR)

Arun Kumar Sinha @ Arun Kumar v. State of Jharkhand

2016-03-10

RONGON MUKHOPADHYAY

body2016
ORDER : Heard Mr. R. Krishna, learned counsel appearing for the petitioner and Mr. Vinay Kumar Tiwary, learned A.P.P. for the State. 2. In this application the petitioner has prayed for quashing the entire criminal proceedings in connection with Complaint Case No.530 of 2004 instituted for the offences punishable under Sections 323, 504, 420 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. A further prayer has been made for quashing the order dated 25.01.2012 by which the bail bond of the petitioner has been cancelled and the representation submitted to him under Section 317 of the Cr.P.C. has also been rejected. 3. A complaint case was instituted by the complainant in Complaint Case No. 530 of 2004 in which the petitioner was arrayed as accused no. 4. It has been alleged that the accused no. 1 and 2 had entered into a deed of partnership for carrying a business of manufacturing and selling of cement and the deed of partnership was executed by the accused nos. 1 and 2 with the complainant on 03.12.2013. Subsequently the partnership business failed and accused nos. 1 and 2 had given two cheques which were presented in the Bhurkunda Branch wherein both the cheques were dishonoured. A pleader notice was given by the complainant on 08.05.2004 which was returned back to the complainant pursuant to which another notice was given on 14.06.2004. It is alleged that the complainant had gone on 01.07.2004 to the accused nos. 3 and 4 wherein he was manhandled by accused nos. 3 and 4 and was also abused. 4. Upon conducting an enquiry by examining the complainant on solemn affirmation as well as his witnesses cognizance was taken on 02.09.2004 by the learned Judicial Magistrate for the offences punishable under Sections 323, 504 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act. 5. It has been submitted by the learned counsel for the petitioner that the main allegation has been levelled against accused nos. 1 and 2 and passing reference has been made with respect to the role of the petitioner being accused no. 4 of taking part in the abuse and assault of the complainant along with accused no. 3. It has been submitted that the entire dispute is between the complainant and accused no. 1 and 2 and passing reference has been made with respect to the role of the petitioner being accused no. 4 of taking part in the abuse and assault of the complainant along with accused no. 3. It has been submitted that the entire dispute is between the complainant and accused no. 1 and 2 with respect to the partnership business and the petitioner has falsely been implicated in the present case. Learned counsel while assailing the order dated 25.01.2012 by which the bail bond of the petitioner was cancelled and non bailable warrant of arrest was issued against him has also submitted that after the petitioner was granted bail on 16.11.2004 the petitioner continued to attend the case in his representative capacity by filing application under Section 317 of the Cr.P.C. continuously till 01.07.2010. It has been submitted that since the main accused persons did not appear in the case the record was split up vide order dated 01.07.2010. It has also been submitted that without considering that prior to 01.07.2010 the petitioner was regularly appearing before the court his bail bond was cancelled and non-bailable warrant of arrest was issued against him. 6. At this, Mr. Vinay Kumar Tiwary, learned A.P.P., has submitted that the petitioner had continuously absented himself and ultimately the records of the case was confined to the record room by declaring the petitioner as a permanent absconder. It has been submitted that the petitioner was repeatedly directed to be present to explain the substance of accusation to him but the petitioner did not adhere to such directions and, therefore, no lenient view can be taken with respect to the prayer made by the petitioner. 7. Since two fold prayer has been made by the petitioner in this application the same are being dealt with separately. 8. So far as the prayer with respect to quashing of the entire criminal proceedings is concerned, although the dispute was initiated with respect to the partnership business being carried on by the accused nos. 1 and 2 with the complainant but subsequently when the complainant had approached the petitioner, the petitioner and the accused no. 3 had assaulted and manhandled the complainant and has also abused and threatened him. 1 and 2 with the complainant but subsequently when the complainant had approached the petitioner, the petitioner and the accused no. 3 had assaulted and manhandled the complainant and has also abused and threatened him. Such circumstance has been supported by the complainant subsequently and considering the said fact cognizance was taken for the offences punishable under Sections 323 and 504 of the Indian Penal Code and under Section 138 of the Negotiable Instruments Act. Thus, a prima facie case is made out against the accused persons and, therefore, no illegality has been committed by the learned Magistrate in passing the order dated 02.09.2004 and, therefore, there being no circumstance which would cause interference in the criminal proceedings, prayer of the petitioner with respect to quashing the entire criminal proceedings is, hereby, rejected. 9. So far as the second fold of argument of the learned counsel for the petitioner is concerned, it is true that after cognizance was taken the petitioner was summoned to face trial along with the other accused persons. The petitioner was granted bail on 16.11.2004 and from the order sheet it appears that the petitioner was represented through his lawyer by filing an application under Section 317 Cr.P.C. till 01.07.2010. On account of the non-appearance of the accused nos. 1 and 2 non-bailable warrant of arrest, processes under Sections 82 and 83 of the Cr.P.C. was issued against them and the record was split up. It further appears that on 28.08.2010 an order was passed by the learned Judicial Magistrate directing the petitioner and other accused persons to remain physically present so that the substance of accusation could be explained to them. Repeatedly such directions were issued by the learned Magistrate requiring physical presence of the petitioner but as would appear from the order sheet the petitioner did not chose to appear which resulted in passing of the order dated 25.01.2012 by which the application under Section 317 of the Cr.P.C. preferred by the petitioner was rejected, his bail bond was cancelled and non bailable warrant of arrest was issued against him. After cancellation of the bail bond the petitioner never surrendered and ultimately the learned court below was compelled to pass an order on 21.02.2015 declaring the petitioner as a permanent absconder. After cancellation of the bail bond the petitioner never surrendered and ultimately the learned court below was compelled to pass an order on 21.02.2015 declaring the petitioner as a permanent absconder. Thus, from the order sheet it would appear that inspite of repeated orders directing physical presence of the petitioner as the same was necessary for explaining the substance of accusation to him the petitioner ignored such orders leading to cancellation of his bail bond. 10. In such circumstance, therefore, the order dated 25.01.2012 which is under challenge in this application does not suffer from any illegality or infirmity and accordingly the prayer made by the petitioner for quashing the order dated 25.01.2012 is also rejected. Consequent to what has been discussed above, none of the prayers made by the petitioner in this application are tenable and this application having no merit is, hereby, dismissed. Application dismissed.