Himachal Pradesh High Court
__________________________________________________________ vs Shriram Transport Finance Company ... on 2 May, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MMO No. 342 of 2024
Decided on: 2nd May, 2024
__________________________________________________________
Dipender Thakur ...Petitioner
.
Versus
Shriram Transport Finance Company Limited ...Respondent
Coram
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes
For the petitioner: Mr. Vinod Kumar Gupta, Advocate.
For the respondent: Mr. Ashwani Kaundal, Advocate.
Ranjan Sharma, Judge (Oral)
The petitioner [Dipender Thakur] has come up
before this Court, under Section 482 of the Code of
Criminal Procedure, assailing the order dated 23.04.2024,
[Annexure P-1] [referred to as the Impugned Order] passed
by the Learned Chief Judicial Magistrate, Bilaspur, District
Bilaspur, [H.P.] in Case No 251/3 of 2022, titled as Shriram
Transport Finance Company Limited versus Dipender
Thakur whereby, the Learned Trial Court has dismissed
the application filed by the petitioner under Section 70(2) of
the Code of Criminal Procedure for cancellation of the NBW's
and against denial of bail, and by sending the petitioner to
Whether reporters of Local Papers may be allowed to see the judgment?
judicial custody on 23.04.2024 till 06.05.2024.
2. On listing of the case today, Mr. Ashwani
Kaundal, Advocate, appears and waives service of notice on
.
behalf of the respondent.
3. With the consent of the parties and in peculiar
facts of this case, the instant petition is taken up for
hearing/disposal at this stage.
4. Precisely, the case set up by Mr. Vinod Kumar
Respondent-Complainant
r to
Gupta, learned counsel for the petitioner is that the
[Shri Ram Transport Finance
Company Limited] filed a complaint under Sections 138
and 142 of the Negotiable Instruments Act, in Case
No.251-3 of 2022, (Annexure P-1), before the Learned
Chief Judicial Magistrate, Bilaspur, (HP), on which, the
cognizance was taken by the Court and the petitioner-
accused [Dipender Thakur], was directed to appear and
consequently, the petitioner-accused appeared and furnished
the personal/surety bonds before the Learned Trial Court.
Learned counsel further submits that the matter was again
listed on 17.01.2024, on which date the petitioner could not
appear before the Learned Trial Court, as he was suffering
from fever. Due to non-appearance of the petitioner on
17.01.2024, the Learned Trial Court issued the Non Bailable
Warrants [NBW's], so as to ensure the presence of the bail
.
petitioner for 08.05.2024.
5. Though the Learned Trial Court had issued
the Non Bailable Warrants [NBW's] on 17.01.2024 for
08.05.2024, but the petitioner-accused, appeared and
surrendered before the Learned Trial Court on 23.04.2024.
On surrender, the petitioner moved an application under
Section 70(2) of the Code of Criminal Procedure, praying for
cancelling the Non Bailable Warrants [NBW's], and for
granting bail, being bailable offence, but on 23.04.2024
[Annexure P-3] the Learned Trial Court dismissed the
application on the ground, that the applicant/petitioner
could not furnish any material proof to substantiate the
reasons in support of his ailment. While passing the
impugned order the petitioner-accused was sent to judicial
custody till 08.05.2024, subject to the condition that he
shall be produced through Video Conferencing before the
Learned Trial Court on 06.05.2024, if he was not bailed
out earlier.
6. Heard Mr. Vinod Kumar Gupta, Learned Counsel
for the petitioner and Mr. Ashwani Kaundal, Learned Counsel
for the respondent.
.
7. A perusal of the case records reveal that the
order dated 23.04.2024, (Annexure P-3), passed by the
Learned Chief judicial Magistrate, Bilaspur, District Bilaspur,
(HP) rejecting-disposing of the application under Section 70(2)
of the Code of Criminal Procedure, for cancelling the Non
Bailable Warrants [NBW's] and for releasing him on bail has
been assailed in these proceedings.
8. In the background of the material on record,
this Court is of the considered view that the impugned
order dated 23.04.2024, [Annexure P-3], passed by the
Learned Trial Court suffers on two grounds; firstly, once
the Non Bailable Warrants [NBW's] were issued on
17.01.2024, directing the production of the petitioner-
accused [Dipender Thakur] for 08.052024 but, the petitioner
appeared on surrender before the Learned Trial Court on
23.04.2024, then in these circumstances, the only option
available was to cancel the Non Bailable Warrants [NBW's]
issued by it but the refusal to cancel the Non Bailable
Warrants [NBW's], despite appearance, on surrender defeats
the object and rationale of issuing Non Bailable Warrants
[NBW's], in Section 70(2) Cr.P.C. whereby, the primary object
.
of the Court for issuing NBW's is to ensure the presence of
the accused. Accordingly, in facts of this case, once the
petitioner-accused, against whom NBW's were issued on
17.01.2024 for 08.05.2024, had in fact surrendered and
appeared before the Learned Trial Court on 23.04.2024 then,
the Learned Trial Court erred in not exercising its powers,
by not cancelling the NBW's, leading to patent illegality
and therefore, the impugned order dated 23.04.2024,
[Annexure P-3], is not sustainable in law; and secondly, once
the offence under Section 138 of the Negotiable Instruments
Act is bailable offence, coupled with the fact that
the petitioner-accused, appeared, on surrender, before the
Learned Trial Court on 23.04.2024, then, the learned Trial
Court could not refuse the bail, merely on account of the
fact that the petitioner had not disclosed the ground, on
which he could not appear, in response to the issuance of
Non Bailable Warrants [NBW's], in terms of Section 70(2)
of the Code of Criminal Procedure, which is an alien
consideration altogether, when, the object of bail as per
mandate of law, is to ensure the presence of the accused
before the Investigation or during Trial, as the case may be.
.
Once it is nowhere borne out from the records that the
petitioner-accused [Dipender Thakur] herein, after his
surrender on 23.04.2024, had failed to or had intended
not to participate in the proceedings under Section 138 of
the Negotiable Instruments Act then, the Impugned Order
dated 23.04.2024, [Annexure P-3], passed by the Learned
Trial Court in rejecting or denying the claim for bail is dehors
the object, spirit and mandate of granting bail, which has
been ignored by the Learned Trial Court, in the instant case.
9. Besides the above, in peculiar facts of this
case, while filing the application under Section 70(2) of the
Code of Criminal Procedure, the specific stand was taken
that the non appearance, was on account of the ailment of
the petitioner-accused and once this fact has not been
denied or controverted by the non-applicant/complainant,
therefore, on this ground also, the Impugned Order dated
23.04.2024, (Annexure P-3), by recording the findings that
the Learned Trial Court was not satisfied with the grounds so
taken, is vitiated by non-application of mind; when, the plea
was not denied/or is admitted by the non-applicant-
complainant also.
.
[
In view of the above discussion, the impugned
order dated 23.04.2024, [Annexure P-3], and by the
Learned Trial Court i.e. Learned Chief Judicial Magistrate,
Bilaspur, in Case No.251/3 of 2022, is quashed and set
aside. Since the petitioner-accused is in judicial custody,
release the
r to
therefore, the Respondents/State Authorities are directed to
petitioner-accused [Dipender Thakur] from
custody, on furnishing a personal bond of Rs. 25,000/- with
one surety in the like amount to the satisfaction of the
Learned Trial Court, within three days from today. Release
warrants be prepared and consequential action be taken
expeditiously, in accordance with law.
In aforesaid terms, the instant petition as well
as the pending miscellaneous application(s), if any, shall
also stand disposed of, accordingly.
(Ranjan Sharma)
Judge
May 02, 2024
(himani)
