2023 (8) TMI 1127 - HC - Indian Laws

Dishonour of Cheque - insufficiency of funds - validity of issuance of summon to stand trial for the offence under Section 138 of the Act, 1881 - non-application of mind - HELD THAT - It transpires that the applicant is being tried for the offence under Section 138 of the Act, 1881. On 23.10.2019, due to absence of the applicant in the learned trial court concerned, process under Section 82 Cr.P.C. came to be issued. Admittedly, the present applicant is a woman, who is a senior citizen. The issuance of non-bailable warrant and process under Section 82 Cr.P.C. simultaneously cannot be appreciated in view of law laid down by the Hon ble Supreme Court in Inder Mohan Goswami s case 2007 (10) TMI 550 - SUPREME COURT and Raghuvansh Dewanchand Bhasin s case 2011 (9) TMI 1224 - SUPREME COURT as the same is patently illegal and, therefore, unsustainable. In case, the applicant, who is a woman and is a senior citizen, moves an application seeking dispensation of her personal attendance before the learned trial court concerned, the learned trial court concerned is expected to dispose of the same by dispensing with personal attendance of the applicant subject to the fact that whenever the learned trial court concerned finds her physical appearance necessary, she may be directed to appear in person - This Court, on a careful perusal, finds that the applicant has not challenged the order whereby the applicant was summoned to stand trial for the offence under Section 138 of the Act, 1881. In want of specific challenge to the summoning order, at this stage, this Court is not inclined to interfere with the same particularly having regard to the observations made - the present application under Section 482 Cr.P.C. is partly allowed.

Summary

Issues Involved:
1. Quashing of the impugned order dated 23.10.2019.
2. Legality of non-bailable warrant and process under Section 82 Cr.P.C.
3. Disclosure of source of funds by the complainant.
4. Application of judicial mind in summoning order.
5. Dispensation of personal attendance of the accused.

Summary:

Quashing of the Impugned Order:
The applicant sought to quash the impugned order dated 23.10.2019 passed by the Special Judicial Magistrate, Additional Court No.5, Lucknow, and all consequential proceedings arising out of Complaint Case No.1864 of 2012 under Section 138 of the Negotiable Instruments Act, 1881.

Legality of Non-Bailable Warrant and Process under Section 82 Cr.P.C.:
The applicant contended that the issuance of the non-bailable warrant and process under Section 82 Cr.P.C. was patently illegal and done in a mechanical manner without considering that the applicant is a woman and a senior citizen. The court referred to the Supreme Court's guidelines in Inder Mohan Goswami's case, emphasizing that non-bailable warrants should be issued only after proper scrutiny and application of mind, and only if the accused is intentionally avoiding court proceedings.

Disclosure of Source of Funds by the Complainant:
The applicant argued that the complainant failed to disclose the source of the Rs. 50,00,000/- allegedly advanced to the applicant, which is necessary to establish a legally enforceable debt. The court noted that the complainant had not disclosed any source of funds and referred to the Supreme Court's judgment in Rajaram's case, which highlighted the need for the complainant to demonstrate financial capacity to lend the money.

Application of Judicial Mind in Summoning Order:
The applicant argued that the summoning order was issued without application of judicial mind. The court observed that the applicant had not specifically challenged the summoning order and thus refrained from expressing an opinion on the sustainability of the entire proceeding at this stage.

Dispensation of Personal Attendance of the Accused:
The court referred to Section 205 Cr.P.C., which allows a Magistrate to dispense with the personal attendance of the accused. Given that the applicant is a senior citizen and a woman, the court suggested that the trial court should consider dispensing with her personal attendance, subject to the condition that she appears in person whenever necessary.

Conclusion:
The application under Section 482 Cr.P.C. was partly allowed. The impugned order dated 23.10.2019, issuing the non-bailable warrant and process under Section 82 Cr.P.C., was quashed. The court emphasized that the trial court should look into the complainant's disclosure of the source of funds while disposing of the complaint case.