Decided on May 30,2013

Ajay Singh Sijwali Appellant
Shyam Singh Bohra Respondents


- (1.) Order dated 15-4-2013, passed by Special Judicial Magistrate, Haldwani in Criminal Case No. 829 of 2013, Ajay Singh Sijwali v. Shyam Singh, is impugned in the present petition filed under Section 482, Cr.P.C. Petitioner preferred a complaint under Section 138 of Negotiable Instruments Act against the accused-respondent stating therein that respondent-accused borrowed Rs. 26,25,000/- from the petitioner and out of Rs. 26,25,000/-, respondent received Rs. 25,00,000/- through cheque and Rs. 1,25,000/- in cash; on 31-3-2011, accused-respondent in discharge of his financial liability handed over cheque of Rs. 26,25,000/- bearing cheque No. 001159 of Kurmanchal Nagar Sahkari Bank, Branch Sadar Bazar, Haldwani with the assurance that, on presentation, same would be encashed; petitioner-complainant submitted the cheque, however, same was returned with the endorsement "insufficient funds" on 30-5-2011; again cheque was presented for encashment, however, same was again returned with the endorsement "insufficient funds" on 17-6-2011; on the assurance of the respondent-accused, cheque was again presented for encashment on 4-7-2011 and it was again returned with the endorsement "insufficient funds"; statutory notice was sent on the correct address of respondent-accused on 30-7-2011 through Advocate which was received by the accused-respondent on 1-8-2011; despite receiving the notice, accused-respondent failed" to make payment within the statutory period, thereafter, petitioner was compelled to file complaint; learned Magistrate, having perused the statement recorded under Sections 200, Cr.P.C. and 202, Cr.P.C. and other materials made available on record, was pleased to summon the accused-respondent vide order dated 24-10-2011. Despite repeated notices, accused-respondent failed to appear before the learned Magistrate.
(2.) Vide order dated 24-8-2012, learned Magistrate was pleased to issue non-bailable warrants and process under Section 82, Cr.P.C. against the accused-respondent. However, accused-respondent did not appear before the Court; therefore, learned Magistrate passed impugned order dated 15-4-2013 observing that since three addresses of the accused-respondent were given in the complaint and earlier notices, warrants and processes were issued only on the address of Beluwakhal, Jyolikot, District Nainital and report was received to the effect that he did not reside at Beluwakhal, Jyolikot, District Nainital, therefore, fresh non-bailable warrants should be issued on the other addresses given in the complaint and there is no need to pass order under Section 83 of the Cr.P.C. Feeling aggrieved, the petitioner has invoked inherent jurisdiction of this Court under Section 482, Cr.P.C.
(3.) Mr. T.A. Khan, learned Senior Counsel assisted by Mr. Rajesh Joshi, learned counsel for the petitioner, submits that accused-respondent is avoiding services and despite being served, failed to appear before this Court and, therefore, learned Court below was duty bound to pass order under Section 83, Cr.P.C. and learned Magistrate has committed jurisdictional error by declining the request of the petitioner to issue order under Section 83 of Cr.P.C. He further contends that learned Magistrate vide order dated 24-8-2012 was pleaded to issue proclamation under Section 82(1) of the Code, therefore, issuance, of non-bailable warrant afresh and declining the prayer to pass orders under Section 83 of the Code cannot be said to be legal and justified.;

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