CRM No. M 32496 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 32496 of 2010 Date of decision: 07.12.2010 M/s Naval Enterprises and another ........ Petitioners Versus M/s Pasco Export .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Akshay Bhan, Advocate for the petitioners Mr. D S Sobti, Advocate for the respondent -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. (Oral) This is a petition under Section 482 Cr.P.C for quashing of impugned order dated 30.10.2010 passed by the Judicial Magistrate Ist Class, Ludhiana to the extent of imposing of condition No.1 thereby requiring the applicant-petitioner to deposit Rs.28,00,000/-. The facts of the case, in short, are that two complaints under Section 138 of the Negotiable Instrument Act were preferred by one Brij Lal Gupta on account of dishonour of cheques amounting to Rs.28,00,000/- and Rs.26,00,000/-, respectively, which were given to Brij Lal and his son namely, Krishan Lal by petitioner No. 2. He was accordingly, summoned. CRM No. M 32496 of 2010 2 Since, the petitioner could not be served, bailable warrants and non-bailable warrants were issued against him. He was declared proclaimed offender on 01.07.2010. The petitioner finally appeared before the concerned court where the aforesaid complaints are pending and furnished his bail bonds. His bail bonds were accepted by the concerned Judicial Magistrate. Petitioner No. 2 is residing in Dubai along with his entire family for the last ten years. Accordingly, an application dated 19.10.2010 was moved by the petitioner seeking permission to go abroad i.e. Dubai during the pendency of the complaint case. The said application was allowed by the trial Court vide order dated 30.10.2010 subject to various conditions, including the condition that the applicant shall deposit a sum of Rs.28,00,000/- in a Nationalized Bank in India having a Scheduled Branch at Ludhiana. The applicant/petitioner No.2 is aggrieved on account of the said condition, whereby he was called upon to deposit a sum of Rs.28,00,000/- in a Nationalized Bank with further rider that the same shall not be withdrawn by the petitioner and condition No. 3, whereby the petitioner was called upon to furnish an affidavit to the extent that in case any fine or compensation being awarded by the Magistrate in the aforesaid complaint at the final stage, the same would be recoverable from the aforesaid amount deposited by the petitioner. While impugning the said order, learned counsel for the petitioners raised the following arguments:- a) Complaint against the petitioners is for offence under Section 138 of the Negotiable Instruments Act. The said offence is bailable offence. CRM No. M 32496 of 2010 3 Petitioner No. 2 had been released on bail in the said offence. Therefore, his case is covered by the provisions of Section 436 of the Code of Criminal Procedure. There is no provisions under Section 436 Cr.P.C for imposing of any condition while releasing a person on bail in bailable offence. b) A condition can only be imposed by the Court of Sessions or by the High Court while releasing a person on bail under Section 438 Cr.P.C. In the present case, the petitioner was released on bail by the Magistrate in a bailable offence. The Magistrate cannot impose the said condition. c) Lastly, the petitioner was not in a position to deposit the aforesaid huge amount of Rs.28,00,000/- in a Nationalized bank during the pendency of the complaint case due to financial constraints. Learned counsel for respondent, however, vehemently opposed the said prayer and stated that a total sum of Rs.54,00,000/-were due to the petitioners. The apprehension of the respondent can be appreciated especially in view of the conduct of petitioner No.2 as well as taking into account that his entire family is residing abroad i.e. Dubai for the last ten years. Learned counsel for the parties have been heard. Admittedly, petitioner No. 2 was declared proclaimed offender way back on 01.07.2010. It was only after he was declared proclaimed offender that the accused/petitioner chose to appear in the Court. Thus, the petitioner has been intentionally evading the process of service issued by the trial Court for almost a decade. Earlier also, the petitioner is stated to CRM No. M 32496 of 2010 4 have misused the concession of bail by leaving the country without the permission of the Court. The amount involved is also on the higher side. The petitioner may have been released on bail on account of offence under Section 138 of the Negotiable Instrument Act being a bailable offence. However, as per Section 174A of the Indian Penal Code, failure to appear at specified place and specified time as required by a proclamation published under Sub section (1) of Section 82 Cr.P.C, imprisonment for three years or with fine, or with both is prescribed. Moreover, such an offence is non-bailable. Thus, in the present case also, the petitioner was declared proclaimed offender under Section 82(1) of the Code of Criminal Procedure, which is a non-bailable offence. At this stage, learned counsel for the petitioners submitted that petitioner No. 2 is ready and willing to deposit Rs.10,00,000/- to show his bona fide in stead of Rs.28,00,000/- as directed by the Magistrate vide the impugned order. In view of the above statement , the question as to whether the said condition can be imposed or not in the facts of the present case is left open, to be decided later on in an other case. Presently, the ends of justice would be met if the order dated 30.10.2010 passed by the Judicial Magistrate Ist Class, Ludhiana is modified only to the extent vide which the petitioner has been directed to deposit Rs.28,00,000/-. Accordingly, the present petition is dismissed except for the modification that the applicant/petitioner No. 2 shall now deposit a sum of Rs.10,00,000/- in stead of Rs.28,00,000/- in a Nationalized Bank in India having a scheduled branch at Ludhiana. Rest of the conditions as imposed in the impugned CRM No. M 32496 of 2010 5 order shall remain as they are. Disposed of in the above terms (Nirmaljit Kaur) Judge 07.12.2010 mohan