MANU/JH/1923/2013

Equivalent Citation: II(2014)BC88(Jhar.)

Equivalent Citation : MANU /JH /1923 /2013

IN THE HIGH COURT OF JHARKHAND

Crl. M.P. No. 435 of 2009

Decided On: 26.06.2013

Appellants: Mahesh Kejriwal

Vs.
Respondent: State of Jharkhand

Hon'ble Judges/Coram:
Rakesh Ranjan Prasad, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Anil Kumar, Advocate

For Respondents/Defendant: AAP. and K.P. Choudhary, Advocate

ORDER

Rakesh Ranjan Prasad, J.

1. The order, under which cognizance of the offence punishable under Section 138 of
N.I. Act, has been taken against the petitioners, is being sought to be quashed on the
ground that the complaint, which was filed in the year 2005, was prematured. Learned
Counsel appearing for the petitioners submits that from the acknowledgement showing
service of 'Demand Notice', it would appear that the notice had been served in the year
2006, whereas the complaint had been filed in the year 2005.

2. On the other hand, the stand of O.P. No. 2 is that the notice, which had been issued
on 30.4.2005, had been served in the year 2005 itself and since, some figure of the
date is not clear, this plea is being taken on behalf of the Petitioners, which cannot be
allowed to be taken at this stage.

3. I do find substance in the submission advanced on behalf of O.P. No. 2. This is not
the stage to give any finding on the point, raised by the petitioners, rather it is to be
looked into by the trial Court.

4. The other prayer, which has been made in this application is for quashing of the
order dated 10.9.2012, whereby non-bailable warrant of arrest and also process under
Section 83, Cr.P.C. had been ordered to be issued against the petitioners after the
application, filed under Section 317, Cr.P.C., was rejected. Further, the order dated
3.12.2012 has been challenged, whereby an order has been passed for issuance of
permanent warrant of arrest against the petitioners. It was also submitted that the
order dated 5.12.2012, though it has not been challenged, but from bare perusal of it,
which is on the record, it would appear that an order has been passed for consigning
the records to the record room without having any report relating to execution of
process under Sections 82 and 83 of Cr.P.C. and, as such, it is quite bad.

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5. It was further submitted on behalf of the petitioners that one more dispute was
there in between the parties, which had been referred to an Arbitrator and during that
proceeding this dispute was also made subject matter of that arbitration proceeding
and in that arbitration proceeding the amount, subject matter of this case, was paid
and, therefore, the petitioners were under impression that now the complainant would
not be prosecuting the complaint case and in such impression they did not appear
before the Court below.

6. However, Mr. Choudhary, learned Counsel appearing for O.P. No. 2 submits that it is
true that one arbitral proceeding was there in between the parties, but in that case
subject matter of this case was never in dispute before the Arbitrator and, therefore,
any payment made in that proceeding was never the subject matter of this case.

7. Be that as it may, I am not entering into the controversy as to whether the subject
matter of the instant case was the subject matter in the arbitral proceeding or not?
However, at the same time it does appear that the process under Section 83, Cr.P.C.,
which had been ordered to be issued, does not appear to be in accordance with law as
before issuing a process under Section 83, Cr.P.C., no order relating to the execution
of the warrant of arrest or process under Section 82, Cr.P.C. had ever been received by
the Court.

8. In that view of the matter, the order dated 10.9.2012, under which process under
Section 83, Cr.P.C. had been ordered to be issued and also the order dated 3.12.2012
as well as the order dated 5.12.2012, under which the case was ordered to be
consigned to the record room, are hereby quashed.

9. Under the circumstances, the petitioners are directed to surrender before the Court
below within two weeks from today. On his surrender, if any bail application is filed,
the same be disposed of in accordance with law after taking into consideration the
submission made therein. Thus, this application stands disposed of.

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