Punjab-Haryana High Court
Gurcharan Singh vs State Of Haryana on 1 February, 2024
Neutral Citation No:=2024:PHHC:014194
2024:PHHC:014194
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Misc. No. M-5174 of 2024
Date of Decision: February 01, 2024
Gurcharan Singh
......Petitioner
versus
State of Haryana
.....Respondent
CORAM: HON'BLE MR.JUSTICE HARPREET SINGH BRAR
***
Present:-Mr. Amitoj Singh Dhaliwal, Advocate for
Mr. Deepak Kaushal, Advocate for the petitioner
***
Harpreet Singh Brar, J. (Oral)
1. The petitioner has approached this Court under Section 482 Cr.P.C.
for quashing of impugned order dated 01.12.2021 (Annexure P-3) passed by
learned Judicial Magistrate 1st Class, Gurugram, District Gurugram whereby the
petitioner was declared as proclaimed person in case No. NACT-17870-2017
titled as M/s India Infoline Housing Finance Ltd. vs. Gurcharan Singh and for
quashing of FIR No. 1046 dated 10.12.2021 registered under Section 174-A IPC
at Police Station Shivaji Nagar, District Gurugram (Annexure P-1).
2. The brief facts of the present case are that the present FIR was
registered due to non-appearance of the petitioner in the complaint case filed
under Section 25 of Payment and Settlement System Act, 2007 by complainant
Vikash in case number NACT 17870-2017 titled as "M/S India Infoline Housing
Finance Ltd Vs Gurcharan Singh" before the Court of learned Judicial
Magistrate 1st Class, Gurugram. The complainant had instituted the complaint
under Section 25 of Payment and Settlement System Act, 2007 against the
petitioner in the year of 2017 for an amount of Rs. 18,363/- as the said amount
was being deducted as EMI on monthly basis from his bank account. In the
month of September, 2017 when the petitioner did not had said EMI amount in
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his bank account and as such the ECS could not be executed in the month of
September, 2017 on the ground of "Insufficient Funds" with return memo dated
06-09-2017, the complainant had filed a separate complaint under Section 138 of
the Negotiable Instruments Act for the payment of entire loan amount. The
petitioner had paid the entire cheque amount along with compensation to the
complainant. Even in the said case, the petitioner was declared Proclaimed
Person and as such a separate petition is also filed with the present petition for
quashing of the Proclamation order and FIR under Section 174-A. The petitioner
was not having any knowledge regarding the pendency of the present complaint
case filed against him by complainant under Section 25 of Payment and
Settlement System Act, 2007. Learned Judicial Magistrate 1st Class, Gurugram
had earlier issued the process of proclamation against the petitioner vide order
dated 07-02-2020 but due to the outbreak of COVID-19, the said proclamation
could not be issued and thereafter the case was being adjourned as the Courts
were not taking up the routine matters due to outbreak of COVID-19. Ultimately,
the petitioner was declared as proclaimed person vide order dated 01-12- 2021
and the matter was adjourned to 20-12-2021 and FIR under Section 174-A IPC
was registered against him. When the petitioner came to know about the
pendency of the complaint case as well as the FIR registered against him in the
month of December 2023, he immediately paid the entire loan amount along
with the compensation to the complainant. After having received the complete
payment from the petitioner, the complainant moved an application for
withdrawal of the said complaint case under Section 25 of Payment and
Settlement System Act, 2007 against the petitioner as well as the withdrawal of
complaint under Section 138 of the Negotiable Instruments Act.
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3. Learned counsel appearing for the petitioner submits that the non-
appearance of the petitioner was not deliberate and intentional and thus,
aggrieved by the said order, he has approached this Court by way of instant
petition. It is contended that the impugned order is liable to be set aside on the
ground of unintentional non-appearance of the petitioner due to unavoidable
circumstances.
4. It is also submitted that the petitioner undertakes to appear before
the trial Court on each and every date of hearing.
5. Notice of motion.
6. Ms. Geeta Sharma, DAG Haryana, who is present in Court, accepts
notice for the respondent and submits that the impugned order has been passed
on the sole ground of the absence of the petitioner, however, it is not disputed by
her that the parties have compromised the matter.
7. I have heard learned counsel for the parties and perused the record
of the case with their able assistance and with the consent of parties, the matter is
taken up for final disposal.
8. While the scheme of criminal justice system necessitates curtailment
of personal liberty to some extent, it is of the utmost importance that the same is
done in line with the procedure established by law to maintain a healthy balance
between personal liberty of the individual-accused and interests of the society in
promoting law and order. Such procedure must be compatible with Article 21 of
the Constitution of India i.e. it must be fair, just and not suffer from the vice of
arbitrariness or unreasonableness.
9. This Court in the judgment passed in Major Singh @ Major Vs.
State of Punjab 2023 (3) RCR (Criminal) 406; 2023 (2) Law Herald 1506 has
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held that the Court is first required to record its satisfaction before issuance of
process under Section 82 Cr.P.C. and non-recording of the satisfaction itself
makes such order suffering from incurable illegality. In the judgment passed by
this Court in Sonu vs. State of Haryana 2021 (1) RCR (Cri.) 319, it has been
held that the conditions specified in Section 82 (2) Cr.P.C. for the publication of
a proclamation against an absconder are mandatory in nature. Any non-
compliance therewith cannot be cured as an 'irregularity' and renders the
proclamation as nullity.
10. The sole purpose of issuance of non-bailable warrants or issuance
of proclamation is to secure presence of the accused before the trial Court. The
petitioner in the present case has herself come forward and has undertaken to
appear before the trial Court on each and every date.
11. In view of the aforesaid facts and circumstances, the impugned
order dated 01.12.2021 (Annexure P-3) and FIR No. 1046 dated 10.12.2021
registered under Section 174-A IPC at Police Station Shivaji Nagar, District
Gurugram (Annexure P-1) are quashed qua the petitioner.
12. The instant petition stands disposed of.
(HARPREET SINGH BRAR)
February 01, 2023 JUDGE
reena
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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