Punjab-Haryana High Court
Atul Jaiswal vs M/S Nector Biopharma Pvt Ltd on 12 November, 2024
Neutral Citation No:=2024:PHHC:147069
CRM-M-56256
56256-2024 (O&M) -1--
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
121
CRM-M-56256-20242024 (O&M)
Date of decision: 12.11.2024
Atul Jaiswal ...Petitioner
Versus
M/s Nector Biopharma Pvt. Ltd. ...Respondent
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. G. S. Sawhney,, Advocate
for the petitioner.
MANISHA BATRA, J. (Oral)
1. The instant petition has been filed by the petitioner under Section
528 of BNSS, 2023 for quashing of order dated 14.02.2023
14.02.2023,, passed by the
Judicial Magistrate First Class, Chandigarh in case titled as Nector
Biopharma vs. M/s Deep Medical,
Medical, arising out complaint bearing
No. NACT/18241
NACT/ of 2019, filed under
der Section 138 of the Negotiable
Instruments Act (for short 'N. I. Act'),, whereby the petitioner had been
declared a proclaimed person.
2. The present petition has been filed by the petitioner on the
grounds and it has been argued by his counsel that the petitioner has been
falsely implicated in this case.
case The petitioner had no knowledge about the
pendency of the aforesaid complaint as he was never served upon with any
notice/warrants issued by the trial Court. More so, tthe
he petitioner had been
declared a proclaimed
proclaimed person without following the proper procedure
prescribed under Section 82 Cr.P.C. Hence, it is urged that the impugned
order is liable to be set aside.
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3. I have heard learned counsel for the petitioner at considerable
length and have also gone through
through the material placed on record.
4. On giving due deliberations to the contentions as raised by
learned counsel for the parties and on an overall perusal of the orders passed
by the trial Court from the date of initiating proceedings under Section 82
Cr.P.C. as against the petitioner till the date of declaring him a proclaimed
person,, I am of the considered opinion that the impugned order dated
14.02.2023 suffers from material illegalities and is liable to be quashed with
all the consequential proceedings
proceedings arising therefrom.
5. There are catena of judgments of different High Courts
discussing the requirements necessary for issuance and publication of
proclamation against an absconder under Section 82 Cr.P.C. and for declaring
him as a proclaimed person/offender.
person/offender. These requirements have been discussed
from time to time in Rohit Kumar Vs. Stat
Statee of Delhi : 2008 Crl. J. 2561,
Bishundayal Mahton and others Vs. Emperor : AIR 1943 Patna 366,
Devender Singh Negi Vs. State of U.P. : 1994 Crl LJ (Allahabad HC) 11783,
783,
Gurappa Gugal and others Vs. State of Mysore : 1969 CriLJ 826, Shokat Ali
Vs. State of Haryna : 2020(2) RCR (Criminal) 339, Dilbagh Singh Vs. State
of Punjab : (P&H)
(P&H) 2015 (8) R.C.R. (criminal) 166, Ashok Kumar Vs. State
of Haryana and another : 2013 (4) RCR (Criminal) 550, Pawan Kumar
Gupta Vs. The State of W.B. : 1973 CriLJ 1368, Birad Dan Vs. State : 1958
CriLJ 965, Negi alias Debu Vs. State of U.P. and another, 11994
994 Cri LJ 1783
and Pal Singh Vs. The State : 1955 CriLJ 318.
6. After going through the material placed on record as well as the
copies of zimini orders passed by the learned trial Court, it is revealed that on
29.11.2022
2022, since the non-bailable
bailable warrants issued against the petitioner were
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received back unserved, the learned trial Court had ordered for issuance of
proclamation against him for 19.01.2023.. A perusal of the statement of the
serving police official shows that the proclamation was executed on
10.01.2023
.01.2023 requiring the petitioner to cause his appearance before the learned
trial Court, which means that the petitioner was granted only 09 days' time to
cause his appearance before the trial Court. Hence, the same was in clear
violation of the provisions of Section 82(1) Cr.P.C., as per which, a specified
time of not less than 30 days is required to be given to the accused from the
date of publishing
publishing such proclamation which is mandatory in nature. Reliance
in this regard can be placed upon judgment cited as Gurappa Gugal and
others Vs. State of Mysore : 1969 CriLJ 826 and Shokat Ali Vs. State of
Haryana
na : 2020(2) RCR (Criminal) 339.
7. Further, on 19.01.2023, the proclamation was received back
executed but the case was adjourned to 14.02.2023 awaiting the presence of
the petitioner, by making observation that the mandatory period of 30 days
had not elapsed. However, while adjourning the case to 14.02.2023, the
ned trial Court failed to consider the fact that it could not have extended
learned
the time by simply adjourning the case as a fresh proclamation was required to
be published once the period between issuance of publication of proclamation
and the specified period of hearing was less than 30 days. Reference in this
context can be made to Dilbagh Singh Vs. State of Punjab (P&H) : 2015 (8)
R.C.R. (criminal) 166.
8. Accordingly, in view of the discussion as made above and also in
view of the ratio of law as laid down
down in above cited authorities
authorities,, the present
petition is allowed and the impugned order dated 14.02.2023,, passed by the
learned Judicial Magistrate First Class, Chandigarh in case titled as Nector
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Biopharma vs. M/s Deep Medical,
Medical, arising out complaint bearing
No. NACT/18241
NACT/ of 2019, filed under Section 138 of the N. I. Act
Act,, whereby
the petitioner had been declared a proclaimed person,, is quashed with all
consequential proceedings arising therefrom.
9. However, the petitioner is directed to ssurrender
urrender before the Court
concerned within a period of four weeks, subject to order for grant of
anticipatory bail, if any passed on his petition to be filed under Section 482 of
BNSS, 2023.
2023. In the absence of any order for grant of anticipatory bail and on
such surrender, the petitioner shall be liable to be remanded to judicial
custody subject to any order for grant of regular bail to be passed by the
concerned Court in accordance with law.
10. Needless to observe that in case any application is filed before
bef
the concerned Court for grant of regular bail, then the concerned Court shall
be bound to dispose of the same expeditiously and that nothing in this order
shall be treated as expression of any opinion on merits so as to bind or
influence the concerned Court in disposal of the same.
11. Till the appearance of the petitioner before the trial Court, his
arrest shall
hall remain
remai stayed.
12. It is made clear that in case the petitioner fails to appear before
the trial Court within a period of four weeks from today, this petition shall be
deemed to be dismissed.
12.11.2024 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned
speaking/r Yes/No
Whether reportable Yes/No
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