Dishonour of cheque-Property of absconding accused can not be seized unless proclamation is issued against him

Having perused Section 82 of Cr.P.C. I have no hesitation to hold that if learned Court finds that despite-warrants being issued against the accused on his correct address, accused is concealing himself, then the learned 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; proclamation shall be affixed to some conspicuous part of the house or homestead wherein accused ordinarily resides. Perusal of Section 83, Cr.P.C. reveals that after issuance of the proclamation under Section 82, Cr.P.C. the Court may order attachment of any property of the person absconding. Therefore, in my considered opinion, if proclamation under Section 82, Cr.P.C. is not affixed at some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village, then no order under Section 83 can be passed. Since, as per the report, the accused-respondent is not residing at his Jyolikot address, therefore, Court has committed no jurisdictional error directing issuance of fresh non-bailable warrants on the other addresses of the accused given in the complaint.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 524 of 2013

Decided On: 30.05.2013

Appellants: Ajay Singh Sijwali
Vs.
Respondent: Shyam Singh Bohra

Hon'ble Judges/Coram:Alok Singh, J.1

Citation;2013 CR L J 4745 uttarakhand

1. Order dated 15-4-2013, passed by Special Judicial Magistrate, Haldwani in Criminal Case No. 829 of 2013, Ajay Singh Sijwali v. Shyam Singh, is impugned in the present petition filed under Section 482, Cr.P.C. Petitioner preferred a complaint under Section 138 of Negotiable Instruments Act against the accused-respondent stating therein that respondent-accused borrowed Rs. 26,25,000/- from the petitioner and out of Rs. 26,25,000/-, respondent received Rs. 25,00,000/- through cheque and Rs. 1,25,000/- in cash; on 31-3-2011, accused-respondent in discharge of his financial liability handed over cheque of Rs. 26,25,000/- bearing cheque No. 001159 of Kurmanchal Nagar Sahkari Bank, Branch Sadar Bazar, Haldwani with the assurance that, on presentation, same would be encashed; petitioner-complainant submitted the cheque, however, same was returned with the endorsement "insufficient funds" on 30-5-2011; again cheque was presented for encashment, however, same was again returned with the endorsement "insufficient funds" on 17-6-2011; on the assurance of the respondent-accused, cheque was again presented for encashment on 4-7-2011 and it was again returned with the endorsement "insufficient funds"; statutory notice was sent on the correct address of respondent-accused on 30-7-2011 through Advocate which was received by the accused-respondent on 1-8-2011; despite receiving the notice, accused-respondent failed" to make payment within the statutory period, thereafter, petitioner was compelled to file complaint; learned Magistrate, having perused the statement recorded under Sections200, Cr.P.C. and 202, Cr.P.C. and other materials made available on record, was pleased to summon the accused-respondent vide order dated 24-10-2011. Despite repeated notices, accused-respondent failed to appear before the learned Magistrate.

2. Vide order dated 24-8-2012, learned Magistrate was pleased to issue non-bailable warrants and process under Section 82, Cr.P.C. against the accused-respondent. However, accused-respondent did not appear before the Court; therefore, learned Magistrate passed impugned order dated 15-4-2013 observing that since three addresses of the accused-respondent were given in the complaint and earlier notices, warrants and processes were issued only on the address of Beluwakhal, Jyolikot, District Nainital and report was received to the effect that he did not reside at Beluwakhal, Jyolikot, District Nainital, therefore, fresh non-bailable warrants should be issued on the other addresses given in the complaint and there is no need to pass order under Section 83 of the Cr.P.C. Feeling aggrieved, the petitioner has invoked inherent jurisdiction of this Court under Section 482, Cr.P.C.

3. Mr. T.A. Khan, learned Senior Counsel assisted by Mr. Rajesh Joshi, learned counsel for the petitioner, submits that accused-respondent is avoiding services and despite being served, failed to appear before this Court and, therefore, learned Court below was duty bound to pass order under Section83, Cr.P.C. and learned Magistrate has committed jurisdictional error by declining the request of the petitioner to issue order under Section 83 of Cr.P.C. He further contends that learned Magistrate vide order dated 24-8-2012 was pleaded to issue proclamation under Section 82(1) of the Code, therefore, issuance, of non-bailable warrant afresh and declining the prayer to pass orders under Section 83 of the Code cannot be said to be legal and justified.

4. Undisputedly, in the complaint filed by the petitioner, addresses of the accused-respondent is written as under:--

1. Shyam Singh Bora

S/o Harak Singh Bora

Resident of Jyolikot, District Nainital

2. A-32, Judge Farm, Haldwani District Nainital.

3. Onida Exclusive, Shiva Electronics Church Compound Haldwani District Nainital.

5. Admittedly, notices and warrants were issued to the accused-respondent only on the address of Jyolikot, District Nainital and no notices or warrants were issued on the other addresses as shown in the complaint itself. Sections 82 and 83 of the Cr.P.C. are being reproduced herein:--

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 specific 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 persons ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or home-stead 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.

[(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Sections 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, 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 sub-section (1).]

83. Attachment of property of person absconding.--(1) The Court issuing a proclamation under Section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,--

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court,

It may order the attachment simultaneously with the issue of the proclamation.

(2) Such order shall authorize the attachment of any property belonging to such person within the district in which it is made; and it shall authorize the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.

(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made--

(a) by seizure; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the court thinks fit.

(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the collector of the district in which the land is situate, and in all other cases--

(a) by taking possessions or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.

(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).

6. Having perused Section 82 of Cr.P.C. I have no hesitation to hold that if learned Court finds that despite-warrants being issued against the accused on his correct address, accused is concealing himself, then the learned 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; proclamation shall be affixed to some conspicuous part of the house or homestead wherein accused ordinarily resides. Perusal of Section 83, Cr.P.C. reveals that after issuance of the proclamation under Section 82, Cr.P.C. the Court may order attachment of any property of the person absconding. Therefore, in my considered opinion, if proclamation under Section 82, Cr.P.C. is not affixed at some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village, then no order under Section 83 can be passed. Since, as per the report, the accused-respondent is not residing at his Jyolikot address, therefore, Court has committed no jurisdictional error directing issuance of fresh non-bailable warrants on the other addresses of the accused given in the complaint.

Consequently, petition fails and is dismissed.

CRMA No. 744 of 2013 also stands disposed of accordingly.

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