N. BALAKRISHNAN Vs. STATE OF H.P.

JUDGEMENT

(1.) In the instant petition, the petitioner/accused prays for quashing of F.I.R bearing No. 75 of 2013 lodged under Sec. 174-A of the Penal Code with Police Station Barotiwala. A complaint under Sec. 138 of the Negotiable Instrument Act was lodged by respondent No. 2 against M/s. Online Knit Fashion and against the petitioner herein, who was at the relevant time holding in the aforesaid corporate entity, the position of its partner besides other corporate entities were arrayed in the apposite complaint as co-accused alongwith the petitioner. On the complaint being instituted before the Magistrate concerned, he issued summons for procuring the presence of the accused before him. However, the accused did not come to be served through ordinary process. Subsequently the learned Magistrate concerned proceeded to order for issuance of bailable warrants upon the accused for theirs recording their appearance before him, on 26.11.2010. However, the bailable warrants aforesaid issued upon the accused did not come to be returned, by the executing agency concerned, to the learned Magistrate. In sequel, the learned Magistrate on 27.5.2011 ordered for issuance of non-bailable warrants upon the accused, returnable for 27.7.2011. Even the non-bailable warrants remained unexecuted by the executing agency concerned. On 27.10.2011 the learned Magistrate concerned had proceeded to order for issuance of fresh non-bailable warrants upon the accused returnable for 23.12.2011. However, the aforesaid NBWs issued upon the accused returnable for the relevant dates also remained unexecuted. In aftermath, the learned Magistrate concerned was constrained to conclude, that the accused are deliberately evading execution upon them of NBWs, hence, he ordered qua theirs being served through proclamation. He also ordered that the proclamation notice be printed in the newspaper holding circulation in the area whereat the accused resides. Even the printing of the proclamation notice in the relevant newspaper, did not elicit the presence of the accused/respondent before the learned Magistrate concerned. Hence, an application under Sec. 156(3) of the Cr.P.C was preferred by the complainant before the learned Magistrate, seeking a direction upon the SHO, Kasauli, for registration of a case under Sec. 174-A against the absenting accused, who stood declared as a proclaimed offender. The application was allowed. Consequently, an F.I.R against the absenting accused was ordered to be registered at the Police Station concerned. The petitioner/accused is aggrieved by the lodging of the apposite F.I.R hence he seeks a direction that it be ordered to be quashed and set-aside.

(2.) Consequent to printing of a proclamation notice, in the Newspaper concerned, the accused petitioner recorded his presence before the learned Magistrate, on 18.03.2014. On the date aforesaid he was ordered to be taken into custody. The petitioner filed an application under Sec. 437 Crimial P.C. for his being ordered to be released on bail, application whereof was allowed by the learned Magistrate concerned.

(3.) Apparently the offence arising out of dishonour of negotiable instrument stands compounded. However, the mere factum of the Magistrate concerned proceeding to, on an apposite joint motion made before him by the complainant and by the accused concerned, hence record an order for compounding the offence arising out of dishonour of Negotiable Instrument, would not per se exonerate the guilt of the accused especially when he despite the printing of a proclamation notice in the newspaper concerned holding circulation in the area whereat he was residing, omitted, to, on the date mentioned therein hence record his appearance before the learned Magistrate concerned, whereupon he attracted the mandate of Sec. 174-A, provisions whereof stand extracted hereinafter:-