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2021 DIGILAW 375 (HP)

Atul Sen v. State Of H P

2021-07-06

ANOOP CHITKARA

body2021
JUDGMENT Anoop Chitkara, J. - The petitioner, who is undergoing trial in a complaint filed for dis-honour of cheque, and when the trial was fixed for arguments failed to put in appearance in the Court, forcing the learned Trial Court to order registration of FIR under Section 229- A of IPC, has come up before this Court under Section 482 CrPC, 1973, seeking quashing of the impugned orderson the grounds that since he had furnished surety bonds, as such the penal provision did not apply against him. 2. Facts necessary to decide the present petition are that the complainant Shri Girish Chauhan filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 seeking prosecution of the petitioner Shri Atul Sen for dishonor of two cheques. As per the complaint, the petitioner-accused had handed over two cheques, first dated 10.2.2012 drawn for Rs.2,84,000/- (Rs. Two lacs and eightyfour thousand only) in favor of Shri Girish Chauhan and second dated 15.2.2012 drawn for Rs.3,84,000/- (Rs. Three lacs and eighty-four thousand only) in favor of Shri Girish Chauhan. 3. Both these cheques were drawn from the petitioner's account in H.P. State Cooperative Bank Ltd, The Mall, Shimla. Vide memorandums dated 23.2.2012, the H.P. State Cooperative Bank Ltd, informed the drawee of the cheque Shri Girish Chauhan that they could not honor the cheques because of the insufficient balance in the bank account of Shri Atul Sen, the drawer. Failure to pay the money under the legal notice led to the filing of the criminal complaint. 4. Learned Judicial Magistrate 1st Class, Shimla took cognizance of the complaint vide order dated 19.4.2012. The ordinary modes of serving the accused failed, leading to the issuance of non-bailable warrants dated 24.12.2012. The order dated 5.1.2013 reveals that the accused put in an appearance and represented through counsel and furnished requisite bonds. After that, the notice of acquisition was put; trial proceeded, and after completing the evidence, the accused, in his statement under Section 313, CrPC dated 5.12.2014, and a supplementary statement dated 2.4.2015 denied any liability and stated that he did not purchase any apples from the complainant. 5. After recording the statement under Section 313 CrPC, the matter was posted on 6.5.2015, wherein the defense evidence was closed on the statement of the learned counsel for the accused. 5. After recording the statement under Section 313 CrPC, the matter was posted on 6.5.2015, wherein the defense evidence was closed on the statement of the learned counsel for the accused. After that, on 20.5.2015, the accused was present and sought time to furnish bail bonds under Section 437-A, CrPC. Subsequently, on 25.5.2015, additional time was sought on behalf of the accused, and after that, neither the accused nor his counsel put in an appearance. 6. On 25.2.2016, the learned Trial Court initiated proceedings under Section 446, Cr.PC for forfeiture of the bonds amount. Vide separate order of even order, the court also directed the SHO of the concerned Police Station to register the FIR under Section 229, IPC. Both the orders dated 25.2.2016 are extracted as follows:- "25.02.2016 Present: SH. Giri Raj Chauhan, Ld. counsel for the complainant. None for the accused. Private complaint pertains to the year 2012 in which vide order dated 24.8.20165, concerned SHO was directed to lodge FIR u/s 229 IPC but till date no report qua this has been sent this court. Let SHO concerned be directed to comply the previous direction returnable for 30.04.2016. Sd/- Addl.Chief Judicial Magistrate Court No.2, Shimla, H.P." 7. After that the Court passed the following order: "25.02.2016 Present: SH. Giri Raj Chauhan, Ld. counsel for the complainant. None for the accused. It appears that accused by jumping his bail bond has allowed itself for forfeiture and cancellation his bail bond in favour of the State of H.P. which means that he has violated the contract with the State to secure his regular presence and this in the considered opinion of this court once the proceeding u/s 446 Cr.P.C initiated against him only today for the sake of natural justice, he has again sent a notice to appear and contest the proceedings, however, under the peculiar circumstances where such natural justice may be required given to the surety as he has no direct knowledge qua ongoing proceeding before the court, serving renotice to the accused shall have effect of filing the entire mandate of section 446 Cr.P.C and 421 IPC. Rather as per intention of the legislature as soon as accused jumps his bail bond, court does not require to reserve him and can straight away authorize the DM/District Collector to realize the bond amount by attaching his movable or immovable property as furnished by accused at the time of furnishing bail bond as if it is land revenue and thus this court hereby vague further service of the respondent/accused and direct the criminal Ahlmad to send jamabandi or other solvency papers to the District Magistrate/DC to the categorical direction under section 421 IPC authorizing him or to other delegated agency to attach the said property to realize bond amount as it is land revenue. Note: In variably, it comes to the knowledge of the court that concerned Collector of the delegated agency after attachment further seeks direction from the court which cause unnecessary delay in the matter as under section 421 of IPC is evident in itself authorizing the same not only to attach but also to sale by way of public auction keeping in view the relevant provision and chapter under the H.P Land Revenue Act 1954 relating to realization of arrears of rent returnable for 30.04.2016. Sd/- Addl.Chief Judicial Magistrate Court No.2, Shimla, H.P." 8. Subsequently, on 18.6.2016, the Court observed that it did not receive any communication regarding registration of FIR under Section 229, IPC and the Court issued the notice to the concerned SHO to disclose whether the FIR under Section 229, IPC has been registered in compliance to the order dated 25.2.2016 or not. 9. It appears that in the order passed by the Trial Court, due to typographical error, instead of 229-A, only 229 IPC was mentioned. 10. Vide order dated 12.10.2017, fresh notice was issued to the concerned SHO to disclose whether FIR has been registered under Section 229 IPC, as ordered on 25.2.2016 or not. A similar order was again passed on 15.12.2017 and 4.9.2018. 11. Vide order dated 20.12.2018, learned Additional Chief Judicial Magistrate, Court No.2, Shimla passed the following orders: "20.12.2018 Present: Sh.G.R. Chauhan, Adv, for the complainant Report received from the SHO Boileauganj that they have not registered any FIR under Section 229 A IPC against the accused. As per the letter they have not received the order dated 24.8.2015. 11. Vide order dated 20.12.2018, learned Additional Chief Judicial Magistrate, Court No.2, Shimla passed the following orders: "20.12.2018 Present: Sh.G.R. Chauhan, Adv, for the complainant Report received from the SHO Boileauganj that they have not registered any FIR under Section 229 A IPC against the accused. As per the letter they have not received the order dated 24.8.2015. Criminal Ahlmad is directed to send the copy of order dated 24.8.2015 to the SHO Boileauganj for registration of FIR against the accused under Section 229- A of IPC. Let Tehsildar (recovery) be directed to recover the remaining amount under Section 421 Cr.PC and remit the same to this Court for 25.2.2019. Sd/- Addl.Chief Judicial Magistrate Court No.2, Shimla, H.P." 12. The major twist, which can be noticed here, is that the initial order dated 25.2.2016 was for registration of FIR under Section 229, IPC, whereas vide order dated 20.12.2018, the direction was to register the FIR under Section 229A, IPC. The earlier order appeared to be a typographical error by the omission of the letter 'A.' It appears that realizing the mistake, the learned Additional Chief Judicial Magistrate, Court No.2, Shimla passed practically a fresh order directing the registration of FIR under Section 229-A of IPC. The petitioner is also aggrieved by the order dated 20.12.2018. Be that as it may, the learned Additional Chief Judicial Magistrate, Court No.2, Shimla, had corrected the mistake of his predecessor by issuing the new directions. 13. The petitioner filed a petition challenging the orders and the registration of FIR. However, vide order dated 19-11-2020, passed in CRMMO no. 126 of 2020, this Court permitted the petitioner to file a fresh petition. The relevant portion of the said order reads as follows, "Thus, the petitioner may file fresh petition challenging the order dated 20.12.2018 and subsequent orders, wherein a specific direction was issued by the learned Additional Chief Judicial Magistrate, Court No.2, Shimla to register the FIR under Section 229 A, IPC. The rule of the thumb is that as a painting cannot exceed the canvass, similarly, the relief cannot exceed the prayer clause. In the light of the above discussion, this petition is closed as not maintainable in the present prayer clause. Liberty is given to the petitioner to challenge the order dated 20.12.2018 and subsequent orders, which led to registration of FIR under Section 229 A, IPC, if any." 14. In the light of the above discussion, this petition is closed as not maintainable in the present prayer clause. Liberty is given to the petitioner to challenge the order dated 20.12.2018 and subsequent orders, which led to registration of FIR under Section 229 A, IPC, if any." 14. Now, the Petitioner has filed the fresh petition and has rectified the mistakes. 15. Ld. Counsel for the petitioner submits that since the accused was given bail subject to furnishing personal bonds and the surety bonds, as such S. 229-A of IPC does not apply. Ld. Counsel further argued that as evident from Annexure P-2, the complainant has already paid huge amount as part payment out of cheque amount of Rs.6,38,000/-. 16. Ld. Counsel for the State contends that the proposition raised should be answered by the Ld. Trial Court and not by this Court. ANALYSIS: 17. Section 229-A of IPC, came into the statute book on 23.06.2006. It reads as under: "229A. Failure by person released on bail or bond to appear in Court. -Whoever, having been charged with an offence and released on bail or on bond without sureties, fails without sufficient cause (the burden of proving which shall lie upon him), to appear in Court in accordance with the terms of the bail or bond, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Explanation. --The punishment under this section is-- (a) in addition to the punishment to which the offender would be liable on a conviction for the offence with which he has been charged; and (b) without prejudice to the power of the Court to order forfeiture of the bond." 18. In Pradeep Goswami v. State of Rajasthan (Rajasthan),2008 27 RCR(Cri) 105, Rajasthan High Court observed, "5. Section 229A Indian Penal Code. provides for prosecution of accused who being on bail without sufficient cause fails to appear in the Court. In Pradeep Goswami v. State of Rajasthan (Rajasthan),2008 27 RCR(Cri) 105, Rajasthan High Court observed, "5. Section 229A Indian Penal Code. provides for prosecution of accused who being on bail without sufficient cause fails to appear in the Court. According to Section 229A "whoever, having been charged with an offence and released on bail or on bond without sureties, fails without sufficient cause (the burden of proving which shall lie upon him), to appear in Court in accordance with the terms of the bail or bond, shall be punished with imprisonment Out of the essential element for constitution of the offence under Section 229A is that release must be on bail or on bond without sureties. Among the words "on bail or on without sureties" are "without sureties". So it appears that if the person is released without sureties and then he absents without sufficient cause, then only the Section 229A is applicable " 19. The judicial precedent applies to the present case on all fours. In the present case the Court had released the petitioner subject to his furnishing personal bonds and surety bond. 20. Theorder dated 5.1.2013, passed by Ld. Trial Court, reads as follows: - "Case taken up today upon application for cancellation of NBWs having been filed on behalf of the accused and for admitting him on bail. Heard. Record perused. Bail application moved on behalf of accused is considered and allowed in the interest of justice for the reasons stated therein with the specific direction that accused will appear before the court in each and every date of hearing. Accused is ordered to furnish fresh personal bonds to the tune of Rs.20,000/- with one surety in the like amount. Requisite bail bonds furnished. Personal bonds attested and surety bond are accepted by me. NBWs issued against the accused be recalled back un-executed. Let a copy of present orders be supplied to accused in dasti. Accused is directed to appear on 01.03.2013 i.e., date already fixed." 21. In compliance to the above order, the accused furnished personal bond of Rs.20,000/- and also furnished a surety bond of Rs.20,000/-, on 5.1.20213. Shri Shisham Chauhan, stood surety for the petitioner and he also gave an affidavit in support of his surety bond. 22. Thus, it was not the case where the accused was released only on his personal bonds. In compliance to the above order, the accused furnished personal bond of Rs.20,000/- and also furnished a surety bond of Rs.20,000/-, on 5.1.20213. Shri Shisham Chauhan, stood surety for the petitioner and he also gave an affidavit in support of his surety bond. 22. Thus, it was not the case where the accused was released only on his personal bonds. In fact, he had also furnished the requisite surety bond. Consequently, the order directing the registration of FIR under section 229-A of IPC was erroneous. STAGE OF QUASHING FIR: 23. In Ashok Chaturvedi v Shitul H. Chanchani, (1998) 7 SCC 698 , Hon'ble Supreme Court holds that the determination of the question as regards the propriety of the order of the Magistrate taking cognizance and issuing process need not necessarily wait till the stage of framing the charge. The Court holds, " This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in Section 245 of the Criminal Procedure Code, he is debarred from approaching the court even at an earliest (sic earlier) point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under section 482 of the Code can be exercised. 24. In Girish Sarwate v. State of A.P., (2005) 1 RCR(Cri) 758, the Full Bench of Andhra Pradesh High Court observed that the High Court need not wait for completion of investigation and taking cognizance by the Magistrate. JUDICIAL PRECEDENTS ON JURISPRUDENCE OF QUASHING: 25. 24. In Girish Sarwate v. State of A.P., (2005) 1 RCR(Cri) 758, the Full Bench of Andhra Pradesh High Court observed that the High Court need not wait for completion of investigation and taking cognizance by the Magistrate. JUDICIAL PRECEDENTS ON JURISPRUDENCE OF QUASHING: 25. The law is almost settled by various pronouncements of the Hon'ble Supreme Court that when the FIR and the investigation do not make out any case or the prosecution is inherently and patently illegal, and the matters that fulfill the criteria for quashing, the High Court resorting to S. 482 CrPC can quash such FIR and consequent proceedings. In R.P. Kapur v State of Punjab, (1960) AIR SC 866, a three-member Bench of Hon'ble Supreme Court holds, "[6]. ...It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, the High Court would be justified in quashing the proceedings on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such case, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide : In Re: Shripad G. Chandavarkar, (1928) AIR Bombay 184, Jagat Chandra Mozumdar v. Queen Empress, (1899) 26 ILR(Cal) 786, Dr. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide : In Re: Shripad G. Chandavarkar, (1928) AIR Bombay 184, Jagat Chandra Mozumdar v. Queen Empress, (1899) 26 ILR(Cal) 786, Dr. Shankar Singh v. State of Punjab, (1954) 56 PunLR 54 : (AIR 1954 Punj 193), NripendraBhusan Roy v. GobinaBandhu Majumdar, (1924) AIR Calcutta 1018 and Ramanathan Chettiyar v. SivaramaSubramania, (1924) 47 ILR(Mad) 722 : (AIR 1925 Mad 39)." 26. In MadhavraoJiwaji Rao Scindia v Sambhaji rao Chandroji rao Angre, (1988) 1 SCC 692 , a three judges' bench of the Hon'ble Supreme Court holds "[7]. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." CONCLUSION: 27. This Court has inherent powers under Section 482 of the Code of Criminal Procedure to interfere in this kind of matter. Given the entirety of the case and judicial precedents, I am of the considered opinion that the continuation of these proceedings will not suffice any fruitful purpose whatsoever. 28. In Himachal Pradesh Cricket Association v State of Himachal Pradesh, (2018) 4 Crimes(SC) 324, Hon'ble Supreme Court holds "[47]. Given the entirety of the case and judicial precedents, I am of the considered opinion that the continuation of these proceedings will not suffice any fruitful purpose whatsoever. 28. In Himachal Pradesh Cricket Association v State of Himachal Pradesh, (2018) 4 Crimes(SC) 324, Hon'ble Supreme Court holds "[47]. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated." 29. Given above, this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is invoked to quash the proceedings mentioned above. The FIR mentioned above is quashed, and all the consequential proceedings are also quashed and set aside. The bail bonds are accordingly discharged. All pending application(s), if any, stand closed. 30. In the facts and circumstances peculiar to this case, the petition is allowed in the aforementioned terms. Copy Dasti.