Dalmia Resorts International ... vs Sh. Deepak Gupta And Anr.
2002 Latest Caselaw 739 Del

JUDGMENT

S.K. Agarwal, J.

1. By this petition under Section 397 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") petitioner M/s. Dalmiya Resorts International Pvt. Ltd. is seeking quashing of the proceedings under Sections 82/83 Cr.P.C. in the complaint filed by respondent No. 1 (Deepak Gupta) against them and others, under Section 138 of the Negotiable Instruments Act (for short "NI Act") read with Section 420 of Indian Penal Code.

2. Facts in brief are that respondent No. 1 (Deepak Gupta) filed a complaint against the petitioner, Mrs. Indu Dalmiya (Chairperson), N.P. Jalan and Pardeep Shukla (Directors of petitioner No. 1) alleging that the petitioner issued cheque No. 974214 dated 3rd December, 1997 for Rs. 18,515.67 drawn on State Bank of Patiala, Nehru Place, New Delhi. The cheque was dishonoured with the remarks "stopped payment". Despite notice, the payment was not made. After the preliminary enquiry, petitioner were summoned under Section 138 of NI Act. Summons were returned unserved and they did not appear. On 9.10.2000, learned trial court passed the following order:-

"Present Complainant with Counsel. Accused No. 1 is a Company. Accused No. 2-4 are absent even today. An Application has been filed by one Shri S.C. Mittal for cancelling NBW against him as he states to be authorised representative of the Accused No. 1 Company. His Ld. Counsel has made also such submission on previous date i.e. 26.8.2000 before this Court. I have carefully perused the entire material on record. The name of S.C. Mittal does not figure in the list of accused persons mentioned in the complaint. The legal notices issued to the accused also does not show this man i.e., as the Authorised representative. He has not filed any documentary proof on record to show that he is in fact authorised representative of Accused No. 1 Company. This application is not supported by any affidavit of any person. In view of these reasons this man SCM does not appear to be the authorised person of the Accused No. 1 Company. Hence this application is dismissed as infructuous. He need not to appear further in the matter as he does not seem to be authorised representative of accused No. 1 Company. As none of the accused are present today, issue fresh NBW against all accused for 17.5.2001 to be get served by SHO P.S. Paschim Vihar personally."

On 17.5.2001, without noticing the report on the warrants, fresh process under Section 82/83 Cr.P.C. was issued against all the accused persons.

3. This order is under challenge. Learned counsel for petitioner argued that the proceedings under Sections 82/83 Cr.P.C. against the petitioner company could not be initiated; the petitioner is a company and that they have always been ready and willing to compensate the complainant towards the amount of the cheque along with any reasonable rate of interest, without prejudice to their rights and contentions. This apart, proclamation for any person absconding can be issued if the Court has the reasons to believe that the person against whom a warrant has been issued by it has absconded or is concealing himself and that warrant of arrest cannot be executed only then the Court is empowered to publish a written proclamation requiring him to appear at a specified date and time, within thirty days from the date of publication of such proclamation. The term "absconding" does not necessarily imply a change of place. The petitioner being a private limited company, the question of its absconding does not arise. The process of proclamation and attachment are exceptional remedies and should not be issued as a matter of course whenever the warrant is returned unexecuted. The non-conformance of Section 82(1) and (2) would be violation of the procedure established by law within the meaning of Article 21 of the Constitution of India. It appears that while issuing process under Sections 82/83 Cr.P.C., the Court did not even notice the report on the warrant. The impugned order issuing proclamation against the petitioner, on the face of it is not sustainable.

For the foregoing reasons, the order dated 17th May, 2001, initiating proceedings under Sections 82/83 Cr.P.C. against petitioner (M/s. Dalmiya Resorts International Pvt. Ltd.) in the complaint No. 529/1, under Section 138 of NI Act is quashed, subject to the conditions that the petitioner shall put in appearance before the trial court within two weeks from today and deposit the cheque amount along with interest in the Court at the rate of 18% from 3rd December, 1997 (date of the cheque), till the date of payment in the name of complainant, without prejudice to the rights and contentions of the parties. If the amount is deposited the Court shall release the said amount to the complainant, on such terms and conditions as it deems fit and proper. Or pass such other orders as may be deemed necessary. With these directions, petition stands disposed of. Any observation made herein shall not affect the merits of the case.

Registry is directed to segregate the trial court file and to send back the same.