Sri S.P. Muthuraman vs State of Karnataka

K.N. Keshava Narayana, J.—In this petition u/s 482 of Code of Criminal Procedure the Petitioner has sought for quashing the proceedings initiated against him in Crime No. 71/10 on the file of the C.J. (Jr. Dn.) and JMFC, Koppa, Chickmagaiur District for offence u/s 174A of IPC.

Five prosecutions were initiated against Petitioner for offences punishable under Sections 406 and 409 of IPC in CC No. 551-555/08 on the file of Civil Judge (Jr. Dn.) and JMFC, Koppa, on the ground that the Petitioner being the joint Managing Director of Alageshwara Estate Limited in Chickmagalur district has failed to remit the P.F. contributions of the employer and employees and thereby he has misappropriated the funds belong to the Provident Fund Trust. According to the Respondent, in those proceedings though summons were issued for the appearance of the Petitioner, the same could not be served on him. Non bailable warrants issued against him were also returned unexecuted as he was not available at the address furnished. Therefore the trial Court ordered issue of proclamation in terms of Section 82 of Code of Criminal Procedure. Even after the publication of the proclamation, since the Petitioner-accused did not appear within the time specified therein, proceedings were initiated in Crime No. 71/10 against the Petitioner for the offence punishable u/s 174A of IPC. It appears subsequently the Petitioner was arrested and when produced before the learned Magistrate he was released on bail.

It is the contention of the learned Counsel for the Petitioner that initiation of proceedings in Crime No. 71/10 for the offence u/s 174A is highly improper and illegal inasmuch as there is absolutely no material to indicate that the summons issued by the Court in CC No. 551-555/2008 were sought to be served on the Petitioner and that he deliberately avoided the service, nor there is any material to indicate that the non bailable warrants issued for his production in those cases could not be executed, therefore the very issue of proclamation u/s 82 is bad in law. It is also his submission that while issuing, the proclamation u/s 82 and its publication, all the requirements specified u/s 82 of Code of Criminal Procedure have not been complied with, therefore the proceedings initiated for the offence u/s 174A is illegal and is liable to be quashed.

The learned Counsel for the Petitioner took me through the certified copies of the ordersheets pertaining to CC No. 551-555/2008. Perusal of these ordersheets indicate that after the cognizance of the offence was taken, the Court directed issue of summons to the accused in all those cases arid the summons were returned unsaved. Thereafter the learned Magistrate directed issue of non bailable warrants on several occasions and even those non bailable warrants returned unexecuted. It is only thereafter the learned Magistrate ordered proclamation in terms of Section 82. The learned Counsel for the Petitioner has not produced the certified copies of the returned summons or non bailable warrants to indicate as to what was the circumstance under which the summons and the non bailable warrants were returned unsaved and (sic) Section 87 of Code of Criminal Procedure empowers the Court for issue of warrants in lieu of summons. In the case on hand the perusal of the ordersheets indicate that the learned Magistrate at the first place issued summons and when the summons could not be served on the Petitioner, non bailable warrants were issued against him for his arrest. When the non bailable warrants also could not be executed, the Court had no alternative but to issue proclamation in terms of Section 82. There is also no material placed before this Court to indicate that the requirement of Section 82 have not been complied with. In this view of the matter, having regard to the facts and circumstances of the case there is prima facie material to indicate that the Petitioner has committed offence u/s 174A of IPC and for the same separate proceeding has been initiated and the investigation is taken up in that regard. Therefore, I find no ground to entertain this petition. Accordingly, the petition is dismissed.