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2024 DIGILAW 1057 (PNJ)

H. P. Nikhil Petrol Pump v. Ravi Kumar

2024-07-12

KIRTI SINGH

body2024
JUDGMENT Ms. Kirti Singh, J. (Oral) This order shall dispose of aforementioned petitions as common questions of fact and law are involved therein. 2. By way of the present petitions, prayer has been made for quashing of impugned orders dated 13.12.2016 (in CRM-M-25986 & 25576 of 2019) and impugned orders dated 30.03.2015 (in CRM-M-41331 & 41206 of 2019) vide which the petitioners have been declared as proclaimed persons/absconders. 3. For brevity, the facts are being extracted from CRM-M- 25986-2019. 4. The facts of the present petition is that petitioner No.1 is the H.P. Nikhil Petrol Pump situated at Nakodar Road, Near Ravi Dass Chowk, Jalandhar, and the petitioner No. 2 is the sole proprietor of the aforesaid petitioner No.1-petrol pump. The present case is being filed by Sh. Jagdish Rai Kanda General Power of Attorney holder of petitioner No.2 (Annexure P-4). 5. Allegedly, as a generous step to help the respondent to earn his daily bread the petitioner no.-2 allowed the respondent to run a taxi stand called 'USA Taxi Stand' in the back yard of the petitioner's petrol pump. Petitioner no.-2 had executed a General Power of Attorney dated 23.11.2004 in favour of Rajesh Kumar (Respondent's Brother) authorizing him to run and manage the aforesaid petrol pump. Later the petitioner No.2 came to know that Rajesh Kumar is not managing the aforesaid petrol pump properly and he in connivance with respondent is trying to capture the activities of the petrol pump. In 2014, petitioner No.2 decided to revoke aforementioned General Power of Attorney executed by him vide cancellation deed dated 07.07.2014 and he executed another General Power of Attorney in favour of Jagdish Rai Kanda authorizing him to manage the activities of the petrol pump, the respondent and Rajesh Kumar had also filed a civil suit seeking mandatory injunction for directing the petitioners for repair and construct a roof on a shop forming part and parcel of the property of aforesaid petrol pump in Court of Ld Civil Judge (Junior Division) Jalandhar in year 2014, which was dismissed by the learned Civil Court. They later filed another Civil Suit dated 07.08.2014 for permanent injunction restraining the petitioners from interfering the peaceful possession over the H.P. Petrol Pump and the same was dismissed vide order dated 22.03.2017. 6. Rajesh Kumar, despite ceasing to be an Attorney holder of the petitioner No.02, signed a Cheque no. 000254 dated 17.09.2014 for Rs. They later filed another Civil Suit dated 07.08.2014 for permanent injunction restraining the petitioners from interfering the peaceful possession over the H.P. Petrol Pump and the same was dismissed vide order dated 22.03.2017. 6. Rajesh Kumar, despite ceasing to be an Attorney holder of the petitioner No.02, signed a Cheque no. 000254 dated 17.09.2014 for Rs. 2,75,000/- drawn on HDFC bank, near Narinder Cinema, Jalandhar, in favour of the respondent without any authority. The payment of cheque was declined and cheque was returned with return memo dated 13.11.2014 with remark -'Payment Stopped by Drawer'. True copy of the cheque and bank return memo is attached herewith as Annexure P-6 and Annexure P-7 respectively. 7. The respondent allegedly sent a legal notice dated 02.12.2014 to petitioner which was never served or received by the petitioner no.2 as she was residing in America as a permanent citizen/resident and visits India occasionally. Respondent had filed a complaint under Section 138 of Negotiable Instrument Act on 19.12.2014, Learned Trial Court after examining the respondent as witness, summoned the concerned clerk from HDFC Bank, Branch Adda Bhargo Camp, Jalandhar, which was duly served but the concerned clerk failed to appear before the Learned Trial Court. Later, fresh summons was issued vide order dated 05.01.2016 seeking clarification from the concerned clerk/branch to clarify whether Rajesh Kumar S/o Paramjit was authorized signatory on behalf of H.P. Nikhil Petroleum at the time of issuing the cheque. The requisite record was not produced before the Learned Trial Court and the Learned Trial Court proceeded further without taking into consideration the records of the bank and issued summons to the petitioners vide order dated 25.05.2016. 8. Learned senior counsel appearing for the petitioners contends that petitioner No. 2 has been staying abroad since 2005. No effort was made by the trial court to serve the petitioners at that address. As the petitioner was in America, the impugned summonses were never served on her address. The orders dated 19.07.2016 and order dated 21.09.2016 clearly reflect that correct address was not furnished by the defendants and the summons were never served upon the Petitioner no.2, thus, in such situation the order dated 13.12.2016, issuing proclamation under Section 82 Cr.P.C. against the petitioner and declaring him a proclaimed offender are not sustainable. The orders dated 19.07.2016 and order dated 21.09.2016 clearly reflect that correct address was not furnished by the defendants and the summons were never served upon the Petitioner no.2, thus, in such situation the order dated 13.12.2016, issuing proclamation under Section 82 Cr.P.C. against the petitioner and declaring him a proclaimed offender are not sustainable. He further submits that mere perusal of section 82 Cr.P.C. shows that before a proclamation can be issued, the Court should have reasons to believe (whether after taking evidence or not) that a person, against to whom a summons had been issued, is concealing himself and as a result the summons cannot be executed/served. The orders clearly show that while issuing process under Section 82/83 Cr.P.C. the court did not record satisfaction that the summons against the petitioners could not be served or that she was concealing himself. In fact, no effort was made to serve the petitioner at her address, further, there is nothing to show that summons were ever attempted to be served on the applicant through Ministry of External affairs at America, the orders have been passed without following the due procedure, therefore, are maintainable and hence liable to be quashed. He also submits that Sub-clause (2) also provides that if the court thinks fit, the proclamation can be published in some daily newspaper, circulating in the place in which such person ordinarily resides. It is evidently clear that such action was not taken by the learned Trial Court. Hence, there are lacunas in the procedure followed by the learned Court. 9. Learned senior counsel has placed reliance upon the order dated 19.12.2023 passed by a Coordinate Bench of this Court in CRM-M-13602- 2022 and order dated 15.03.2024 passed in CRM-M-6246-2017. 10. Per contra, learned counsel for the respondent submits that the petitioners despite the proclamation had failed to appear before the trial Court and has rightly been declared proclaimed persons vide the impugned order. 11. Heard. 12. Admittedly, the petitioner No.2 had been residing in USA since 2005. 10. Per contra, learned counsel for the respondent submits that the petitioners despite the proclamation had failed to appear before the trial Court and has rightly been declared proclaimed persons vide the impugned order. 11. Heard. 12. Admittedly, the petitioner No.2 had been residing in USA since 2005. A perusal of the record shows that civil suit dated 07.08.2014 (Annexure P2) had been filed by the respondent in which petitioner no.2 had been impleaded as respondent No.5 and her address was furnished as 899 N King road, 2107, San Jose CA 95133 United States of America which clearly shows that the petitioner was not residing in India and same was well within notice and knowledge of the respondent. 13. It would be relevant to refer to the provision of Section 82 Cr.P.C. which provides for publication of proclamation against the person absconding. It reads as under:- "82. Proclamation for person absconding. - (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:- (i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; (c) a copy thereof shall be affixed to some conspicuous part of the Court-house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. (4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect. (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under subsection (1)." 14. There are catena of judgments of different High Courts discussing the requirements necessary for issuance and publication of proclamation against an absconder under Section 82 Cr.P.C. and for declaring him as a proclaimed person/offender. These requirements have been discussed from time to time in Rohit Kumar v. State of Delhi : 2008 Crl. J. 2561, Rohit Kumar v. State of Delhi : 2008 Crl. J. 2561, Bishundayal Mahton and others v. Emperor : AIR 1943 Patna 366, Devender Singh Negi v. State of U.P. : 1994 Crl LJ (Allahabad HC) 1783, Gurappa Gugal and others v. State of Mysore : 1969 CriLJ 826, Shokat Ali v. State of Haryna : 2020 (2) RCR (Criminal) 339, Dilbagh Singh v. State of Punjab : (P&H) 2015 (8) R.C.R. (criminal) 166, Ashok Kumar v. State of Haryana and another : 2013 (4) RCR (Criminal) 550, Pawan Kumar Gupta v. The State of W.B. : 1973 CriLJ 1368, Birad Dan v. State : 1958 CriLJ 965, Birad Dan v. State : 1958 CriLJ 965, Negi alias Debu v. State of U.P. and another, 1994 Cri LJ 1783 and Pal Singh v. The State : 1955 CriLJ 318. 15. It is clear from the record that warrant of arrest was issued and proceedings under Section 82 Cr.P.C. were initiated against the petitioner when she was in America. 15. It is clear from the record that warrant of arrest was issued and proceedings under Section 82 Cr.P.C. were initiated against the petitioner when she was in America. There is nothing on record to show that the trial Court had made any efforts or passed any order for serving the petitioners at her actual place of residence in America through Ministry of External Affairs at USA. 16. A person cannot be said to be "absconding" or "evading" the execution of warrant when he/she had gone to a distant place before the warrant had been issued. Reliance has been placed on the judicial dictum rendered in the case of "M.S.R. Gundappa v. State of Karnataka" 1977 Cr LJ NOC 187, wherein it was held that a person who had gone abroad even before the issue of the warrant of arrest cannot be said to be absconding or concealing himself with the intention to disrupt the execution of that warrant. 17. Further, reliance has been placed upon the judgment of this Court rendered in CRM-M-1513-2009 tiled as "Mehar Singh and Anr. v. State of Punjab" wherein it was held as under: "In the present case, since the petitioners were already residing in Canada before the registration of FIR in question i.e. since the year 1997, there was no occasion for them to conceal themselves or abscond. A perusal of order dated 7-10- 2008 (Annexure P-10) and order dated 21-12-2007 (Annexure P- 4) does not reveal that the petitioners were ever attempted to be served in Canada especially when there was no material on record that the petitioners had left the country after the registration of FIR in question with a view to abscond or conceal themselves. Rather in the inquiries conducted by the police, the petitioners were found to be innocent because the alleged papers in question were prepared in Canada. Thus, the petitioners were declared proclaimed offenders in violation of Section 82, Criminal Procedure Code. Accordingly, the impugned order dated 7-10-2008 (Annexure P-10), whereby the petitioners were declared proclaimed offenders, is set aside." 18. Rather in the inquiries conducted by the police, the petitioners were found to be innocent because the alleged papers in question were prepared in Canada. Thus, the petitioners were declared proclaimed offenders in violation of Section 82, Criminal Procedure Code. Accordingly, the impugned order dated 7-10-2008 (Annexure P-10), whereby the petitioners were declared proclaimed offenders, is set aside." 18. From the perusal of the case file and assistance of learned senior counsel appearing for the petitioners, it can be inferred that petitioner no.2 was residing in USA since 2005, but her address was intentionally shown to be in Jalandhar, therefore, there was no occasion for her to evade the process of law intentionally, as she was never served in accordance with law. Thus, the proclamation order dated 13.12.2016 (Annexure P16) is in gross violation of Section 82 Cr.P.C. 19. Therefore, in view of the aforesaid discussions, this Court is of the considered view that the impugned orders 13.12.2016 (in CRM-M-25986 & 25576 of 2019) and impugned orders dated 30.03.2015 (in CRM-M- 41331 & 41206 of 2019) vide which the petitioners had been declared as proclaimed persons/absconders are not sustainable in the eyes of law and hence, the same deserves to be set aside/quashed. 20. In view of above, the petitions stand allowed and the impugned orders 13.12.2016 (in CRM-M-25986 & 25576 of 2019) and impugned orders dated 30.03.2015 (in CRM-M-41331 & 41206 of 2019) are set aside. 21. Considering the fact that this matter is pending since a considerable period, cost of Rs. 50,000/- is ordered to be paid to the respondent by the petitioners jointly and severally. 22. Pending miscellaneous application(s), if any, also stands disposed of. 23. A photocopy of this order be placed on the file(s) of the other connected case(s).