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2019 DIGILAW 412 (RAJ)

Mahesh Kumar v. State

2019-02-05

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT : Dr. Pushpendra Singh Bhati, J. Petitioner has preferred this misc. petition under Section 482 of Cr.P.C. claiming the following relief:— “1. The salary of the petitioner i.e. salary of Rs. 51,001/- per month in EMP ID: RJNA199928003917 may kindly be attached and the cheque amount be deducted in pro-rata basis and same be paid accordingly to the complainant and other persons, may kindly be attached. 2. Any other relief which this Hon'ble Court deems just and proper in favour of the petitioner, may kindly be granted and 3. The cost of the criminal misc. petition be allowed in favour of the petitioner.” 2. For the reasons submitted by learned counsel for the petitioner, the defects pointed out by the office is overruled. 3. The allegation in the present facts and circumstances requires only the assistance of the State of Rajasthan which learned Public Prosecutor accepts to render. 4. With the consent of both the parties, the matter is finally heard. 5. Brief facts of this case, as noticed by this Court, are that the complainant filed a case under Section 138 of Negotiable Instrument Act against the present petitioner, as he had borrowed certain amount from him and in lieu of the amount, gave cheque bearing No. 875811 of SBBJ, Branch Bhilwara. The said cheques were dishonored and after giving the legal notice, the proceedings under Negotiable Instrument Act were initiated. 6. Learned counsel for the petitioner accepts complete liability of the petitioner arising out of the cheque in question and does not wish to contest the Negotiable Instrument Act proceeding on merits. 7. Learned counsel for the petitioner makes a limited submission that the petitioner is a regular Government servant and is serving on the post of Radiographer. It is also contended by learned counsel for the petitioner that the basic salary of the petitioner is Rs. 50,800/-, DA Rs. 4572/-, HRA Rs. 4064/-, Mess Allowances Rs. 250/-, SPI Pay Rs. 1000/- and washing allowances Rs. 150/- per month which comes to Rs. 60,836/- per month. 8. Learned counsel for the petitioner further states that out of gross salary of Rs. 60,836, Rs. 9,835/- are being deducted by the State of Rajasthan per month, as per the pay-slip of the petitioner. Thus, as per the learned counsel for the petitioner, the petitioner is drawing Rs. 150/- per month which comes to Rs. 60,836/- per month. 8. Learned counsel for the petitioner further states that out of gross salary of Rs. 60,836, Rs. 9,835/- are being deducted by the State of Rajasthan per month, as per the pay-slip of the petitioner. Thus, as per the learned counsel for the petitioner, the petitioner is drawing Rs. 51,001/- per month, as indicated in the pay-slip of the petitioner for the month of October, 2018. 9. Learned counsel for the petitioner further submits that there were certain compelling circumstances which resulted into the petitioner borrowing such huge amount and due to his inability to pay the same, the petitioner is facing the trial. 10. Learned counsel for the petitioner does not press for prayer 2 and 3. It is also contended that petitioner is pressing only the prayer No. 1, which reads as follows :— “The salary of the petitioner i.e. salary of Rs. 51,001/- per month in EMP ID: RJNA199928003917 may kindly be attached and the cheque amount be deducted in pro-rata basis and same be paid accordingly to the complainant and other persons, may kindly be attached.” 11. Learned Public Prosecutor is not opposed to the prayer 1, as while representing the State of Rajasthan he appreciates the facts that the petitioner is a permanent Government employee of State of Rajasthan and attachment of his salary could be a good way of resolving his liabilities. 12. Heard learned counsel for the parties and perusing the record of the case, this Court observes that the legislative intention of Negotiable Instrument Act was that the Negotiable Instrument, may be cheque once issued should be honored by the parties. Looking to the facts of the case, the petitioner seems to be a habitual offender but since the petitioner is readily accepting to get his pay attached for the purpose of necessary payments, it would be in the interest of justice that the petitioner is permitted to get his pay attached. On being asked, learned counsel for the petitioner has informed this Court that wife of the petitioner is also a Government servant, and therefore, the family will not face any crisis of subsistence. 13. Thus, the present misc. petition is disposed of with a direction to the State of Rajasthan that the salary of the petitioner i.e. to the tune of Rs. 13. Thus, the present misc. petition is disposed of with a direction to the State of Rajasthan that the salary of the petitioner i.e. to the tune of Rs. 51,001/- in EMP ID: RJNA199928003917 shall be attached and the same shall be deposited by the State of Rajasthan before the learned court below in first week of every month. The learned court below shall continue to disburse the salary received as attached, as per the dues to the respondent No. 2 and the learned court below shall impose lawful interest on the delayed payments due to the amount as per completion of delay. It is further made clear that the respondent No. 2 shall be entitled to receive the lawful interest for the delayed payment, as per the satisfaction of the learned court below. The State of Rajasthan shall maintain the attachment to the salary account to the tune of Rs. 51,001/- every month until the learned court below records its satisfaction that the complete amount has been paid in each of cases being decided today against the petitioner. In case, the respondent faces any difficulty in receiving the amount, the same shall be redressed by the learned court below. 14. It is also made clear that though the trial shall continue the proceedings but in the meanwhile, the petitioner shall not be arrested. The petitioner shall be required to join the trial and if there is any default for his appearance, the learned court below shall be free to issue fresh arrest warrant against the petitioner. The implication of arrest warrant as already issued is stayed by this Court only for the present and in future, if there is any dereliction on the part of the petitioner in remaining present and participation in the court proceedings, the learned court below shall be free to take all necessary steps including issuing of arrest warrant. The learned court below shall ensure that for all the delayed payments, the respondent is compensated by appropriate lawful interest, till the complete amount is finally paid. It shall be open for the learned court below to impose all necessary conditions to ensure the compliance of this order in right spirit.