1) The petitioner filed a criminal petition in the High Court of Karnataka seeking to quash an order by a lower court rejecting his application to recall a non-bailable warrant issued against him in a case filed under Section 138 of the Negotiable Instruments Act.
2) The High Court set aside the lower court's order rejecting the application to recall the warrant, noting that the lower court erred in rejecting it solely due to the petitioner's absence.
3) The High Court allowed the petitioner's application to recall the warrant, on the condition that the petitioner undertakes to appear at the next hearing in the lower court.
Original Description:
138 NI KA HC Cr P 3176 of 2018 ORDER 23.03.2018 - FOR NBW CANCELLATION PRESENCE OF ACCUSED NOT REQUIRED BEFORE MAGISTRATE
Original Title
FOR NBW CANCELLATION PRESENCE OF ACCUSED NOT REQUIRED BEFORE MAGISTRATE
1) The petitioner filed a criminal petition in the High Court of Karnataka seeking to quash an order by a lower court rejecting his application to recall a non-bailable warrant issued against him in a case filed under Section 138 of the Negotiable Instruments Act.
2) The High Court set aside the lower court's order rejecting the application to recall the warrant, noting that the lower court erred in rejecting it solely due to the petitioner's absence.
3) The High Court allowed the petitioner's application to recall the warrant, on the condition that the petitioner undertakes to appear at the next hearing in the lower court.
1) The petitioner filed a criminal petition in the High Court of Karnataka seeking to quash an order by a lower court rejecting his application to recall a non-bailable warrant issued against him in a case filed under Section 138 of the Negotiable Instruments Act.
2) The High Court set aside the lower court's order rejecting the application to recall the warrant, noting that the lower court erred in rejecting it solely due to the petitioner's absence.
3) The High Court allowed the petitioner's application to recall the warrant, on the condition that the petitioner undertakes to appear at the next hearing in the lower court.
S/O. JANARDHAN SALIAN, AGED ABOUT 48 YEARS, R/AT ‘SAI SHAM’, BHARATHI NAGAR, BIJAI, MANGALORE, D.K. DISTRICT – 575004. ... PETITIONER (BY SRI. PRASANNA.V.R, ADVOCATE)
AND:
SMT. RAMA R.SHETTY
PROPRIETOR OF SHRI HANUMAN ENTERPRISES, REP. BY GPA HOLDER, MR. RAVI PRAKASH SHETTY, S/O. CHANDAIAH SHETTY, AGED ABOUT 53 YEARS, R/AT SHRI HANUMAN BUILDING, KULURU FERRY ROAD, ALAKE, MANGALORE, D.K. DISTRICT - 575003 ... RESPONDENT
THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C
BY THE ADVOCATE FOR THE PETITIONER PRAYING TO QUASH THE ORDER DATED 23.02.2018 IN C.C.NO.636/2017 PASSED BY THE LEARNED J.M.F.C (V COURT) D.K., MANGALORE, REJECTING THE APPLICATION FOR RECALLING THE NBW ISSUED AGAINST THE PETITIONER/ACCUSED. 2
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Issuance of notice to respondent is dispensed
with, since no order prejudicial to the interest of
respondent is being passed in this petition.
2. Heard, Sri. Prasanna V.R., learned counsel
appearing for petitioner. Perused the order under
challenge dated 23.02.2018 passed in
C.C.No.636/2017, whereunder application filed by the
petitioner/accused under Section 70(2) of Cr.P.C. for
recall of non-bailable warrant issued, has been rejected
on the ground of absence of accused.
3. Respondent herein has initiated proceedings
against the petitioner/accused by filing a complaint
under Section 138 of Negotiable Instruments Act, 1881
(hereinafter referred to as ‘NI Act’ for short), alleging
that respondent/accused has committed an offence
punishable under Section 138 of NI Act. Summons
issued to the petitioner/accused was not served. As
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such learned Magistrate by order dated 07.12.2017 has
issued non-bailable warrant to the accused. Thereafter,
on 23.02.2018 accused having come to know about
warrant having been issued against him, filed an
application under Section 70(2) of Cr.P.C. for recall of
the warrant. However, learned Magistrate on the
premise that accused is not present when the
application is taken-up for consideration, has rejected
the said application.
4. Section 70(2) of Cr.P.C. does not indicate
that accused should be present when the warrant for
recall is filed. Offence alleged against petitioner/accused
is under Section 138 of NI Act and it is a summon’s
case. As such learned Magistrate ought to have
considered the application for recall of non-bailable
warrant even in the absence of accused.
5. Hon’ble High Courts of Andhra Pradesh,
Delhi and Bombay have taken a view that application
for recall of non-bailable warrant issue against accused
in summons case cannot be rejected on the ground of
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accused not being present at the time of said
application being considered. This Court is in complete
agreement with the view expressed by the said High
Courts and as such, order under challenge cannot be
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