Punjab-Haryana High Court

Rachna Sharma vs Welldone Packers (India) Pvt. Ltd on 19 November, 2024

                                 Neutral Citation No:=2024:PHHC:150370

CRM-M-53435
      53435-2024 (O&M)                                                     -1--




      IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
                 HARYANA AT CHANDIGARH
114
                                                     CRM-M-53435-20242024 (O&M)
                                                      Date of decision: 19.11.2024
                                                                          .11.2024

Rachna Sharma                                                        ...Petitioner

                                         Versus

Welldone Packers (India) Pvt. Ltd.                               ...Respondent

CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA

Present:-   Mr. Manuj Nagrath, Advocate
            for the petitioner.

MANISHA BATRA, J. (Oral)

1. CRM-45456 45456-2024

Allowed as prayed for, subject to all just exceptions.

Documents are taken on record as Annexures P P-7/A and P-8.

2. CRM-M M-53435-2024 (O&M)

The instant petition has been filed by the petitioner seeking

quashing of order dated 30.09.2024 (Annexure P P-7), passed by the learned

Judicial Magistrate First Class, Ludhiana in case titled as Welldone Packers Pvt.

Ltd. vs. Anant Precessions Pvt. Ltd.

Ltd., arising out of a complaint

filed under Section 138 of the Negotiable Instruments Act, 1881

(for short 'N. 'N I. Act'), whereby the petitioner had been declared a proclaimed

person.

3. The present petition has been filed by the petitioner on the grounds

and it has been argued by her counsel that the petitioner has been falsely

implicated in the aforesaid complaint. The petitioner was neither the signatory

nor the Managing Director of the said company and she had challenged the

summoning order dated 22.05.2019 passed by the learned trial Court by filing a

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revision petition before the Court of learned Additi Additional onal Sessions Judge

Ludhiana. However, the said petition was dismissed in default due to non-

non

appearance of the petitioner. A bare perusal of the aforesaid complaint would

reveal that the petitioner has wrongly been named as Archana Sharma,

Managing Director, Director, whereas her name is Rachna Sharma and she was not the

Managing Director of the firm and only because of being mother of accused No.

3-Bahul Bahul Sharma, she has been implicated in this case. In fact, the proclamation

was issued in the wrong name, which is ev evident ident from the complaint as well as

copy of Aadhar Card of the petitioner. In fact, the petitioner was never served

upon with any summons/warrants issued by the learned trial Court. The

petitioner had been declared a proclaimed person without following the proper

procedure prescribed under Section 82 Cr.P.C. The petitioner is ready to appear

before the learned trial Court and join the Court proceedings. Hence, it is urged

that the impugned order is liable to be set aside.

4. I have heard learned counsel ffor the petitioner and have also gone

through the material placed on record.

5. 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 th date of declaring her a proclaimed person,, I am of the

considered opinion that the impugned order dated 30.09.2024 suffers from

material illegalities and is liable to be quashed with all the consequential

proceedings arising therefrom.

6. There are catena ena of judgments of different High Courts discussing

the requirements necessary for issuance and publication of proclamation against

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an absconder under Section 82 Cr.P.C. and for declaring him as a proclaimed

person/offender. These requirements have been ddiscussed iscussed from time to time in

Rohit Kumar Vs. State State of Delhi : 2008 Crl. J. 2561 2561,, Bishundayal Mahton and

others Vs. Emperor : AIR 1943 Patna 366, Devender Singh Negi Vs. State of

U.P. : 1994 Crl LJ (Allahabad HC) 1783, Gurappa Gugal and others Vs. State

off Mysore : 1969 CriLJ 826, Shokat Ali Vs. State of Haryna : 2020(2) RCR

(Criminal) 339, Dilbagh Singh Vs. State of Punjab : (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, 1994 Cri LJ 1783 and Pal Singh Vs. The State : 1955 CriLJ 318.

7. After going through the material placed on record as well as the

copies of zimni orders passed by the learned trial Court, it is revealed that on

14.08.2024 since the non-bailable 14.08.2024, bailable warrants issued against the petitioner (who is

wrongly named as 'Archana Sharma') were received back unserved, the trial

Court had ordered for issuance of proclamation against her for 30.09.2024. A

bare perusal of this order shows that the learned trial Court before ordering for

publication of proclamation has not recorded its proper satisfaction that the

petitionerr had absconded or was concealing herself so that the warrant of arrest,

previously issued, cannot be executed, despite reasonable diligence, which was

in violation of the provisions of Section 82(1) of Cr.P.C. Reliance in this regard

can be placed upon Rohit hit Kumar Vs. State of Delhi : 2008 Crl. J. 2561.

8. Further, on n a perusal of the statement of the serving police official,

it is revealed that the proclamation was not read over in some conspicuous place

of the town or village in which the petitioner was supposed to be residing. As

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per Section 82 (2) of the Cr.P.C., for publication, the proclamation has to be first

publicly read in some conspicuous place of the town or village in which the

accused ordinarily resides; then the same has to be affixed to some conspicuous

part of the house or homestead in which the accused ordinarily resides or to

some conspicuous place of such town or village and thereafter a copy of the

proclamation has to be affixed to some conspicuous part of the Court Court-house.

house.


The three sub-clauses
          sub         (a)-(c)

and not disjunctive, which means that there would be no valid publication of the

proclamation unless all the three modes of publication are proved. Reliance in

this regard can c be placed upon Pawan Kumar Gupta Vs. The State of W.B. :

1973 CriLJ 1368.

9. Accordingly, in view of the discussion as made above and also in

view of the ratio of law as laid down in above cited authorities but without

meaning to make any comment on the merits of the case, the present petition is

allowed and the impugned order dated 30.09.2024 (Annexure P P-7),, passed by

the learned Judicial Magistrate First Class Class, Ludhiana in case titled as Welldone

Packers Pvt.

Pvt. Ltd. vs. Anant Precessions Pvt. Ltd.

Ltd., arising out of a complaint

filed under Section 138 of the N. I. Act, whereby the petitioner had been

declared a proclaimed person,, is quashed with all consequential proceedings

arising therefrom.

10. However, the petitioner is directed to surrender before the Court

concerned within a period of four weeks, subject to order for grant of

anticipatory bail, if any, any passed on her petition to be filed under Section 482 of

BNSS, 2023.

2023. In the absence of any order for gran grantt of anticipatory bail and on

such surrender, the petitioner shall be liable to be remanded to judicial custody

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subject to any order for grant of regular bail to be passed by the concerned Court

in accordance with law.

11. Needless to observe that in case any application is filed before 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 bin bind d or influence the

concerned Court in disposal of the same.

12. Till the appearance of the petitioner before the trial Court, Court,her her arrest

shall hall remain remai stayed.

13. 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.

14. Since in the complaint, the name of the present petitioner/accused

has been mentioned as 'Archana Sharma' instead of 'Rachna Sharma' and

summons/warrants had also been issued issued in the incorrect name, therefore, the

learned trial Court may call upon the respondent/complainant to move an

appropriate application for making necessary corrections in the complaint.




19.11.2024
  .11.2024                                                (MANISHA BATRA)
Waseem Ansari                                                 JUDGE




          Whether speaking/reasoned                       Yes/No

          Whether reportable                              Yes/No




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