2021 (12) TMI 65 - HC - Indian Laws

Dishonor of Cheque - petitioners were declared as proclaimed persons, without due service having been effected - even a clear period of 30 days was not given from the date of affixation - principles of natural justice - HELD THAT - From a comparison of the address of the petitioners mentioned in the complaint under Section 138 of the Act of 1881 (Annexure P-1) and the address of the petitioners which has been mentioned in the memo of parties in the present petition, it is clear that the address of the petitioners as has been mentioned in the complaint is not correct. A perusal of the zimni orders which have been annexed with the present petition would also show that the petitioners were never served. The proclamation dated 09.03.2018 (Annexure P-5) would show that the date fixed in the same was 30.04.2018 whereas, as per the statement of Makhan Singh, PHG dated 30.04.2018 (Annexure P-6), affixation had been done on 23.04.2018 and thus, clear period of 30 days has not been given to the petitioners for appearance. It is, thus, apparent that the proceedings declaring the petitioners as proclaimed persons are bad on the said account alone and thus, the registration of the FIR under Section 174-A of the IPC is illegal. It is further clear that the petitioners had joined the proceedings in the complaint case under Section 138 of the Act of 1881 and had been granted the benefit of bail as is apparent from order dated 09.07.2021. Petition allowed.

Summary

Issues:
Petition under Section 482 of Cr.P.C. for quashing FIR and subsequent proceedings arising from the same. Address discrepancy in complaint under Section 138 of the Negotiable Instruments Act. Proclamation proceedings and service of petitioners. Legality of FIR registration under Section 174-A of IPC. Effect of appearance in proceedings under Section 138 of the Act of 1881 on FIR registration. Abuse of court process in continuing proceedings under Section 174-A of IPC.

Analysis:
The petitioners filed a petition under Section 482 of Cr.P.C. seeking to quash FIR No. 125 dated 20.10.2018 under Section 174-A of the IPC and subsequent proceedings. The complaint under Section 138 of the Negotiable Instruments Act in 2016 alleged dishonor of a cheque, but the petitioners claimed the address mentioned was incorrect. They argued lack of awareness about the case and improper service, supported by zimni orders and proclamation details. The petitioners were declared proclaimed persons without proper service, violating the requirement of a 30-day period for appearance as per legal precedents cited.

The State opposed the petition, citing the proclaimed status of the petitioners as the basis for the FIR registration. However, the Court noted discrepancies in addresses and lack of proper service, rendering the proclamation proceedings invalid. Referring to legal judgments, the Court emphasized the necessity of a 30-day notice period for appearance, highlighting the illegality of the proclaimed status and subsequent FIR registration under Section 174-A of the IPC.

The Court further considered the petitioners' appearance in the Section 138 proceedings, where they were granted bail and anticipatory bail, indicating their willingness to cooperate. Citing a relevant case precedent, the Court concluded that once the accused appeared in the main case and bail was granted, continuing proceedings under Section 174-A of the IPC would amount to an abuse of court process. Consequently, the Court allowed the petition to quash the FIR and subsequent proceedings, subject to the petitioners paying a specified amount to the complainant in the Section 138 proceedings.

In the final order, the Court directed the petitioners to pay the specified amount to the complainant within a stipulated timeframe, failing which the petition would be dismissed. The judgment highlighted the importance of legal procedures, proper service, and the consequences of abuse of court processes in maintaining the integrity of legal proceedings.