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Himachal Pradesh High Court · body

2017 DIGILAW 582 (HP)

N. Balakrishnan v. State of H. P.

2017-05-24

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. In the instant petition, the petitioner/accused prays for quashing of F.I.R bearing No. 75 of 2013 lodged under Section 174-A of the IPC with Police Station Barotiwala. A complaint under Section 138 of the Negotiable Instrument Act was lodged by respondent No.2 against M/s Online Knit Fashion and against the petitioner herein, who was at the relevant time holding in the aforesaid corporate entity, the position of its partner besides other corporate entities were arrayed in the apposite complaint as co-accused alongwith the petitioner. On the complaint being instituted before the Magistrate concerned, he issued summons for procuring the presence of the accused before him. However, the accused did not come to be served through ordinary process. Subsequently the learned Magistrate concerned proceeded to order for issuance of bailable warrants upon the accused for theirs recording their appearance before him, on 26.11.2010. However, the bailable warrants aforesaid issued upon the accused did not come to be returned, by the executing agency concerned, to the learned Magistrate. In sequel, the learned Magistrate on 27.5.2011 ordered for issuance of non-bailable warrants upon the accused, returnable for 27.7.2011. Even the non-bailable warrants remained unexecuted by the executing agency concerned. On 27.10.2011 the learned Magistrate concerned had proceeded to order for issuance of fresh non-bailable warrants upon the accused returnable for 23.12.2011. However, the aforesaid NBWs issued upon the accused returnable for the relevant dates also remained unexecuted. In aftermath, the learned Magistrate concerned was constrained to conclude, that the accused are deliberately evading execution upon them of NBWs, hence, he ordered qua theirs being served through proclamation. He also ordered that the proclamation notice be printed in the newspaper holding circulation in the area whereat the accused resides. Even the printing of the proclamation notice in the relevant newspaper, did not elicit the presence of the accused/respondent before the learned Magistrate concerned. Hence, an application under Section 156(3) of the Cr.P.C was preferred by the complainant before the learned Magistrate, seeking a direction upon the SHO, Kasauli, for registration of a case under Section 174-A against the absenting accused, who stood declared as a proclaimed offender. The application was allowed. Consequently, an F.I.R against the absenting accused was ordered to be registered at the Police Station concerned. The application was allowed. Consequently, an F.I.R against the absenting accused was ordered to be registered at the Police Station concerned. The petitioner/accused is aggrieved by the lodging of the apposite F.I.R hence he seeks a direction that it be ordered to be quashed and set-aside. 2. Consequent to printing of a proclamation notice, in the Newspaper concerned, the accused petitioner recorded his presence before the learned Magistrate, on 18.03.2014. On the date aforesaid he was ordered to be taken into custody. The petitioner filed an application under Section 437 Cr.P.C. for his being ordered to be released on bail, application whereof was allowed by the learned Magistrate concerned. 3. Apparently the offence arising out of dishonour of negotiable instrument stands compounded. However, the mere factum of the Magistrate concerned proceeding to, on an apposite joint motion made before him by the complainant and by the accused concerned, hence record an order for compounding the offence arising out of dishonour of Negotiable Instrument, would not per se exonerate the guilt of the accused especially when he despite the printing of a proclamation notice in the newspaper concerned holding circulation in the area whereat he was residing, omitted, to, on the date mentioned therein hence record his appearance before the learned Magistrate concerned, whereupon he attracted the mandate of Section 174-A, provisions whereof stand extracted hereinafter:- 1[174A. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.] 4. Moreover, as submitted by the learned Deputy Advocate General that with the offence constituted under the provisions of 174-A IPC being incidental to besides unrelated to the offence constituted by the dishonour of negotiable instrument concerned, hence the mere recording of an order of composition by the Magistrate concerned, on the application preferred before him by the accused, would not erode the offence committed, within the ambit of Section 174-A, by the accused. In making the aforesaid submission the learned Deputy Advocate General has relied upon judgments rendered by the Delhi High Court in Pradeep Kumar Sehdev vs. The State (Govt. of NCT of Delhi) in CRL.M.C.3683 of 2016 and in M/s Sundri Apparels (India) Pvt. Ltd. & others vs. State (NCT Delhi) & another reported in 2016 SCC OnLine Del 2512. However, the aforesaid submission addressed before this Court by the learned Deputy Advocate General also the mandate of verdicts recorded by the Delhi High Court upon petitions preferred before it, by the accused concerned seeking quashing of F.IR encapsulating an offence constituted under Section 174-A of the IPC, would not per se be binding upon this Court, as the Delhi High Court, appears, to, not hold an appropriate interpretation besides appreciation of the mandate of Section 174-A of the IPC, rather it appears, to, in a stricto sensu manner attract its penal clout upon the accused, merely, upon the fact of the mere printing of a proclamation notice, in the newspaper concerned per se inviting attraction of its provision upon the accused, predominantly when in consonance thereof, the accused failed to record his appearance before the learned Magistrate concerned “whereas” the subtle underlying nuance of all the penal provisions embodied in the Indian Penal Code, for hence attracting their clout “rests’ upon the accused concerned holding the apt mens rea. Also without any attribution of or want of ascription of any mens rea, to the accused concerned, the criminal Court concerned, would be disabled to work the mandate of Section 174-A viz-a-viz the accused. Moreover, want whereof would be antithetical to the trite tenet of criminal jurisprudence qua unless the mens rea appropriate, to attracting the mandate of the relevant penal provisions upon the accused, is spelt out or established, thereupon the clout of the relevant penal provisions being both unattractable besides unworkable upon the accused concerned. Moreover, want whereof would be antithetical to the trite tenet of criminal jurisprudence qua unless the mens rea appropriate, to attracting the mandate of the relevant penal provisions upon the accused, is spelt out or established, thereupon the clout of the relevant penal provisions being both unattractable besides unworkable upon the accused concerned. Being so, the stricto sensu interpretation purveyed by the Delhi High Court upon the mandate of Section 174-A appears to be grossly astray from the subtle underlying nuance, of the aforesaid trite tenet of criminal jurisprudence rather this Court is constrained to read into the mandate of Section 174-A, an imperative ingredient qua the apposite mens rea embodied therein for attracting its clout being constituted in the accused concerned intentionally despite holding knowledge of the printing of the publication notice hence failing to appear before the Court concerned, imputation whereof qua him warranting an averment being recorded in the complaint, that the absenting accused “had” despite his reading the proclamation notice evidently printed in the newspaper or despite his reading it on the relevant website, of even upon the social media, if provenly loaded thereon, his yet omitting to on the dates specified therein record his appearance before the learned Magistrate concerned. However, the aforesaid ingredient constituting the imperative mens rea apposite to the penal provisions held in Section 174-A of the IPC, is amiss in the apposite complaint. In sequel, its not finding its occurrence therein renders the apposite F.I.R to warrant its being quashed. Moreover, the continuation of further proceedings launched against the accused, in pursuance thereto, would also be both inappropriate and unjust. 5. Furthermore, a perusal of the relevant publication material, which stood purportedly printed in the newspaper holding circulation in the area whereat the accused concerned was residing “discloses” that the newspaper wherein the relevant proclamation notice was printed also carrying a news item therein with respect to the holding of elections in Punjab. 5. Furthermore, a perusal of the relevant publication material, which stood purportedly printed in the newspaper holding circulation in the area whereat the accused concerned was residing “discloses” that the newspaper wherein the relevant proclamation notice was printed also carrying a news item therein with respect to the holding of elections in Punjab. Nowat, with Punjab being located in a part of India remotely distant from the place where the accused concerned was residing nor also it being echoed in the complaint, that the relevant newspaper evidently hence holding circulation within the territory of Punjab also holding circulation in the territory where the accused was residing nor any communication occurring in the apposite complaint, that the accused had read the printed proclamation notice on web-site or internet despite given its being loaded thereon, hence sequels an inference, that the accused concerned ‘never’ had the opportunity to read the proclamation notice published in a newspaper holding circulation only in the territory of Punjab, corollary whereof is that “no” imputation of knowledge thereof by him nor any imputation qua his non appearance before the Court concerned, on the date spelt thereto, holding the apposite mens rea of intentional omission ‘can hence be made upon him’. In aftermath, the ingredients for constituting an offence under Section 174-A IPC is not made out against the petitioner. Consequently, I find merit in the petition and is allowed accordingly. In sequel F.I.R bearing No. 75 of 2013 lodged under Section 174-A of the IPC with Police Station Barotiwala, is quashed and set-aside.