J.K.S.MANICKAM Vs. THE INSPECTOR OF POLICE, KUMARA PALAYAM, SALEM DISTRICT AND THE COMMISSIONER OF POLICE, KANPUR CITY, U.P. STATE

JUDGEMENT

(1.) THE petitioner, J.K.S.Manickam, it is said, is the Director of Sundaram Spinning Mills, Koma -rapalayam, Salem, It appears, complaint case No.3109 of 1993 had been filed before the IX Metropolitan Magistrate, Kanpur against him for alleged offence under Section 138of the Negotiable Instruments Act. On account of his non -appearance before the said Court, a warrant under Section 70of the Code of Criminal Procedure, 1973 (Act No.2 of 1974 for short Crl.P.C.) had been issued by the said Court with a direction to the Superintendent of Police, Salem for his arrest and production before the said Court on 29.7.1994.

(2.) THE said Superintendent of Police, in turn, it is said, endorsed the said warrant to the Inspector of Police, Komarapalayam, Salem District (1st respondent) for due execution in accordance with law. The petitioner, apprehending arrest at the hands of the first respondent, resorted to the present action under Section 438 Crl. P.C, also impleading the Commissioner of Police, Kanpur City, U.P. State, as the Second respondent, praying, for grant of anticipatory bail.

(3.) I am at a loss to understand how the present action is maintainable, on the facts and in the circumstances of the case. Admittedly, from a copy of warrant produced before Court, it is rather crystal clear that the petitioner had been facing trial for alleged offence under Section 138 of the Negotiable Instruments Act, 1881 (Act 26 of 1981) (for short 'NI Act') before the IX Metropolitan Magistrate, Kanpur. The offence under Section 138 thereof must have to be construed as an offence falling under Classification II of the Schedule attached to Crl.P.C. An offence under Section 138 of NI Act is punishable with imprisonment, which may extend to one year or with fine, which may extend to twice the amount of the cheque or with both. Since the punishment prescribed therefor is less than three years, it is a bailable offence, as shown in classification II of the Schedule attached to Crl.P.C. Once it is a bailable offence, it goes without saying that the present action, which is one for grant of anticipatory bail, is not maintainable.