Andhra Pradesh High Court - Amravati
Korada Rajababu vs The State Of Andhra Pradesh on 27 October, 2021
HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Writ Petition No.21531 of 2021
Order:
This writ petition is filed questioning the action of
respondents 2 and 3-Police officials in making an effort to execute
the Non-Bailable Warrant that was issued against the petitioner in
C.C.No.350 of 2014 on the file of I Additional Judicial Magistrate
of First Class, Anakapalli of Visakhapatnam district.
2. Heard learned counsel for the petitioner and the learned
Assistant Government Pleader for Home.
3. The petitioner is the sole accused in C.C.No.350 of 2014
on the file of I Additional Judicial Magistrate of First Class,
Anakapalli of Visakhapatnam district. He has been facing
prosecution for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 in the said case on the ground
that the cheque that was allegedly issued by him in discharge of
the legally enforceable debt or liability was dishonoured.
It appears from the record that owing to the absence of the
petitioner before the trial Court that an N.B.W was issued against
him to secure his presence before the trial Court. The said N.B.W
is now pending for execution.
4. Learned counsel for the petitioner would submit that the
said N.B.W was issued long back and till now it was not executed
and as such it is to be treated as a Dead Warrant or that it was
lapsed and as such it is not capable of execution. Therefore,
relying on the dictum laid down by the Apex Court in the
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judgment reported in Raghuvansh Dewanchand Bhasin v.
State of Maharashtra1, he would submit that the said N.B.W is
not capable of execution. He would further contend that the
respondents 2 and 3-Police officials are now making an effort to
execute the said Warrant which is to be treated as a Dead Warrant
on account of lapse of time.
5. Learned Assistant Government Pleader for Home,
on instructions, would submit that after issuance of N.B.W
against the petitioner on account of his absence before the trial
Court, the trial Court has appointed an Advocate Commissioner to
execute the said Warrant and when the learned Advocate
Commissioner approached the petitioner to execute the said
N.B.W that he resisted him and as such the Advocate
Commissioner approached the 3rd respondent-Station House
Officer of Anandapuram Police Station, Visakhapatnam, with
a written requisition to render police assistance to him to enable
him to execute the N.B.W that was issued by the trial Court.
So, he would submit that as N.B.W was issued against the
petitioner and as he is avoiding its execution and also as he is not
facing the trial that he is not justified in seeking the present relief
in this writ petition and the learned Assistant Government Pleader
for Home would pray for dismissal of the writ petition.
6. The fact that the trial Court issued N.B.W against the
petitioner to secure his presence for trial of the case is not
disputed before this Court. As per the copy of the Warrant of
1 AIR 2011 SC 3393
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Arrest, which is now produced before this Court by the learned
Assistant Government Pleader, the said N.B.W was issued on 25-
02-2019. The said N.B.W is pending execution at present. As per
the copy of Commissioner Warrant produced by the learned
Assistant Government Pleader before this Court, it is evident that
on 25-02-2019, the trial Court has appointed an Advocate
Commissioner Sri A.S.V.V. Satyanarayana to execute the said
N.B.W. As per the submission made by the learned Assistant
Government Pleader, a written requisition was made by the said
Advocate Commissioner to render police assistance to him to
enable him to execute the said N.B.W on the ground that the
petitioner resisted the Advocate Commissioner from executing the
said Warrant.
7. Therefore, in the said circumstances, the petitioner,
who is avoiding his presence before the trial Court to face the trial,
is not justified in approaching this Court by way of this writ
petition questioning the validity of the N.B.W that was issued
against him. The proceedings on record show that the petitioner
is being continuously called absent before the trial Court.
Therefore, the trial Court was constrained to issue N.B.W against
him to secure his presence to proceed with trial of the case.
An Advocate Commissioner was also appointed to execute the said
Warrant. The petitioner got the audacity of resisting the Advocate
Commissioner in executing the said Warrant. Therefore, the
Advocate Commissioner was also constrained to approach the
Police seeking proper police assistance to enable him to execute
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the said Warrant. So, in the said circumstances, when the
petitioner is at fault, who is deliberately avoiding his presence
before the trial Court, is not at all justified in questioning the
validity of the said Warrant and seeking the present relief in the
writ petition.
8. Therefore, in the said facts and circumstances of the case,
the writ petition is disposed of with a direction to the petitioner to
surrender before the trial Court within a week i.e. on or before
02-11-2021 and file a petition before the trial Court under Section
70(2) of Cr.P.C to recall and cancel the said N.B.W. Till
02-11-2021, the said N.B.W shall be kept under suspension.
If the petitioner fails to surrender before the trial Court on or
before 02-11-2021, the learned Advocate Commissioner, with the
assistance of the police, shall execute the said Warrant against
the petitioner. In case the petitioner surrenders before the trial
Court on or before 02-11-2021, as ordered above, the trial Court
shall consider the said application and after hearing both the
parties, shall dispose of the said application according to law.
Pending applications, if any, shall stand closed.
_________________________________________
CHEEKATI MANAVENDRANATH ROY, J.
27th October, 2021.
Note:-
Issue C.C. today.
(B/o)
Ak
HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Writ Petition No.21531 of 2021
27th October, 2021.
(Ak)
