- (1.) I have heard learned counsel for the parties. This application under Ss. 397 and 482, Cr. P. C. and under Art. 227 of the Constitution of India, has been preferred by the Petitioner (Original Accused No. 2) in a case under S. 138 of the Negotiable Instruments Act with a prayer that the non-bailable warrant of arrest issued against him on 19-1-1999 by the Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Mumbai, in C. C. No. 1372/s/1998, while rejecting his application for exemption, be quashed.
(2.) THE factual matrix in which this application arises is that the petitioner is Original Accused No. 2 in a case under S. 138 of the Negotiable Instruments Act. 29th October, 1998 was the first date fixed in the said Court. On the said date, the petitioner, as also other accused persons were absent. An application for their exemption was preferred and the case was adjourned to 13th January 1999. On 13th January 1999, again the petitioner and other accused were absent; an application for exemption was moved on their behalf; and the case was adjourned to 19th January 1999. On 19th January 1999, the petitioner was still absent and an application for exemption was moved, a true copy of which has been annexed as Exhibit B to this petition, and the said application was rejected by the learned Magistrate vide the impugned order.
(3.) I have heard learned counsel for the parties. Mr. Gupte learned counsel for the petitioner strenuously urged that the learned Magistrate committed gross impropriety in issuing the impugned non-bailable warrant against the petitioner in his application for exemption which was supported by a medical certificate of one Dr. J. K. Sharma, M. D. of Escorts Heart Institute and Research Centre, Okhla Road, New Delhi, wherein it is mentioned that the petitioner was aged about 85 years, was suffering from Chronic cardiac problem, as also cancer and was not in a position to move at all.;