2021 (10) TMI 330 - HC - Indian Laws

Dishonor of Cheque - Proclamation for person absconding - reason to believe - Section 138 N.I. Act read with Sections 141 and 142 N.I. Act - HELD THAT - The provisions of Section 82(1) and (2) Cr.P.C. should be construed strictly. Before issuing process, a Court is required to record its satisfaction that the accused has absconded or is concealing himself to avoid execution of warrants. It is apparent that the impugned orders suffer from the vice of non-application of mind and deserve to be set aside. The declaration of the petitioner as an absconder , as well as attachment of his properties, was neither fit in the facts and circumstances of the case nor was it in accordance with law. Accordingly, the impugned orders passed in proceedings under Sections 82/83 Cr.P.C. against the present petitioner are set aside - petition allowed.

Summary

Issues Involved:
1. Legality of declaring the petitioner as an 'Absconder.'
2. Validity of FIRs registered under Section 174A IPC.
3. Compliance with the procedure prescribed under Section 82 Cr.P.C.
4. Legality of attachment of the petitioner's properties.
5. Registration of two FIRs on the same cause of action.

Issue-wise Detailed Analysis:

1. Legality of Declaring the Petitioner as an 'Absconder':
The petitioner challenged the order dated 14.08.2018, declaring him an absconder, arguing that the proceedings showed "complete non-application of mind." The court noted that the declaration was made without proper adherence to the procedural requirements under Section 82 Cr.P.C. Specifically, the court emphasized that the proclamation must be preceded by a warrant and the court's satisfaction that the person is absconding or concealing himself. The court found that the trial court did not issue fresh summons/warrants to the petitioner's new address and mechanically issued non-bailable warrants without awaiting the report on bailable warrants.

2. Validity of FIRs Registered Under Section 174A IPC:
The petitioner sought quashing of FIR No. 338/2018 and FIR No. 231/2019, both registered under Section 174A IPC. The court observed that the declaration of the petitioner as an absconder was not in accordance with law. Consequently, the FIRs registered based on this declaration were also deemed invalid. The court noted that the second FIR was inadvertently registered due to the impugned order being received twice at the police station.

3. Compliance with the Procedure Prescribed Under Section 82 Cr.P.C.:
The court scrutinized the compliance with Section 82 Cr.P.C., which mandates specific procedures for declaring a person an absconder. The court highlighted that the proclamation must be publicly read, affixed to the person's residence, and a copy affixed to the court house. The trial court failed to follow these procedures, as evidenced by the process server's report indicating that the petitioner had left the address years ago. The court emphasized that the trial court did not take steps in terms of sub-clause (ii) of Section 82(2) Cr.P.C.

4. Legality of Attachment of the Petitioner's Properties:
The petitioner challenged the order dated 15.02.2020, directing the attachment of his properties. The court found that the trial court directed the attachment without exhausting all processes outlined in Section 82 Cr.P.C. The court referred to precedents emphasizing that attachment orders are exceptional remedies and should not be issued mechanically. The court concluded that the attachment order was not fit in the facts and circumstances of the case.

5. Registration of Two FIRs on the Same Cause of Action:
The petitioner argued that two FIRs on the same cause of action could not have been registered. The court noted that the second FIR was inadvertently registered due to the impugned order being received twice at the police station. The court quashed both FIRs as a necessary consequence of setting aside the impugned orders.

Conclusion:
The court set aside the impugned orders declaring the petitioner an absconder and directing the attachment of his properties. Consequently, FIR No. 338/2018 and FIR No. 231/2019 were also quashed. The court took on record the petitioner's undertaking to regularly appear before the trial court and allowed the petition. A copy of the judgment was directed to be communicated electronically to the concerned trial court.