Umesh Kumar Jain And Others v. State Of Haryana And Another
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision: 29.08.2023 Umesh Kumar Jain and others ....Petitioners versus State of Haryana and another ....Respondents
CORAM:
HON'BLE MR. JUSTICE ARUN MONGA Present:- Mr. Pardhuman Garg, Advocate, Mr. A. Mishra, Advocate & Mr. Parvez Chugh, Advocate for the petitioners.
Mr. Karan Garg, AAG, Haryana.
None for respondent No. 2.
***** ARUN MONGA, J. (ORAL) The instant petition has been filed under Section 482 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking quashing of order dated 07.02.2018 (Annexure P-1) passed by learned Judicial Magistrate First Class, Faridabad, in Complaint No. NACT/4692/2016 dated 23.11.2016 filed under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'), whereby petitioners were declared as proclaimed persons and FIR against them under Section 174-A of the IPC, has been ordered to be registered, alongwith all consequential proceedings arising therefrom. 2.
Learned counsel for the petitioners contends that matter stands settled as entire has been paid to the complainant/respondent no.2 and complaint case under Section 138 Negotiable Instrument Act, 1881 (for short 'the Act') has also been withdrawn by the complainant vide order dated 16.05.2018 (Annexure P-3). He further contends that during the pendency of complaint case the petitioners were declared proclaimed offender vide impugned order dated 07.02.2018 (Annexure P1). 3.
Learned State counsel opposes the prayer made and submits that order declaring petitioners as proclaimed persons has rightly been passed.
He further submits that the offence under Section 174-A IPC is independent of the main case. 5.
Arguments heard.
6.
The complaint against the petitioners was for an offence under Section 138 of the Act. 7.
Vide order dated 07.02.2018 (Annexure P-1), learned Judicial Magistrate First Class, Faridabad, recorded its satisfaction that the accusedpetitioners had absconded, declared them as a proclaimed person and directed that intimation be sent to the concerned police station to initiate proceedings against them under Section 174-A of IPC. In my opinion, the order for registering an FIR itself is not sustainable and fatal to the FIR for the reasons stated hereinafter. 8.
Reference may be had to judgment rendered by me in Pardeep Kumar versus State of Punjab and another1 passed in CRM-M-41656-2023 (O&M) decided on 23.08.2023 wherein I have, inter alia, opined that the offence under Section 174-A of IPC falls within the scope Section 195(1) (a)(i) of the Code ibid which provides that no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Further, it was held that if after declaring an individual as a "proclaimed person" or "proclaimed offender," the Court decides to proceed against him for an offence under section 174-A of IPC, it has to institute a formal written complaint in the competent jurisdictional court and that the order passed for registering FIR and the FIR so registered in such case were not sustainable in law.
9.
In the present case, proceedings under Section 174-A of IPC were not initiated as per guidelines and ratio laid down in Pardeep Kumar judgment ibid. As 1 2023 Live Law (PH) 181
an upshot, it is held that the judgment and order dated 07.02.2018 passed by the learned Magistrate is not sustainable on that ground alone. Neither there is any compliance of the relevant statutory requirements in letter and spirit, for declaring the petitioners proclaimed persons/offenders, nor is the impugned judgment of trial court in terms of the guidelines laid in Pardeep Kumar judgment. For the sake of brevity, the guidelines laid down in Pardeep Kumar judgment are not being reproduced and the same may be referred therefrom. The requisite application of mind by the Court while invoking criminal liability of the petitioners for offence under Section 174-A of IPC is also lacking herein. 10.
As submitted by the learned counsel for the petitioners, the entire cheque amount was paid to the complainant and the complaint under section 138 of the Act was withdrawn vide order dated 16.05.2018 (Annexure P-3). On withdrawal of the complaint and termination of it's proceedings against the petitioners, the requirement for their appearance in Court also came to an end. 11.
Considering the aforesaid facts and circumstances, I am of the opinion that the impugned order dated 07.02.2018 (Annexure P-1) passed by the learned Judicial Magistrate Ist Class, Faridabad, and all subsequent proceedings emanating therefrom are liable to be quashed. 12.
Accordingly, the aforesaid order dated 07.02.2018 (Annexure P-1), is hereby set aside and all consequential proceedings arising therefrom against the petitioners, are quashed.
13.
Pending application(s), if any, shall also stand disposed of. (ARUN MONGA) JUDGE 29.08.2023 'D'Vir Whether speaking/reasoned:
Yes/No Whether reportable:
Yes/No