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Judgment
This Criminal Petition is filed by the petitioner/ accused to quash the order dated 31.03.2023 in Crl.M.P. No.1223 of 2023 in C.C. No.1028 of 2022 on the file of Judicial First Class Magistrate-cum-Junior Civil Judge, Alamuru, East Godavari District, for imposing condition to deposit 20% of cheque amount to recall the non-bailable warrant.
As seen from the record, respondent No.2 is Director of Krishna Prabhas Agro Oils Private Limited, Maredubka of Mandapeta Mandal and the petitioner/ accused approached him to supply D.O Rice Bran Oil on credit. Accordingly, the complainant supplied D.O.Rice Bran Oil worth of Rs.32,70,819/-. But, the petitioner failed to pay the said amount. After repeated requests, the petitioner issued cheque bearing No.265160, dt.04.03.2022 drawn on Axis Bank, Chinnamiram, AP towards full and final payment. When the said cheque was presented, the same is returned with an endorsement “funds insufficient” vide memo dated 08.03.2022. Therefore, the complainant filed the complaint under Section 138 of Negotiable Instruments Act, 1881 and the same is registered as C.C. No.1028 of 2022 on the file of Judicial First Class Magistrate-cum-Junior Civil Judge, Alamuru, East Godavari District (As per e-Courts website, the same is transferred to Special Magistrate Court, Alamuru on 29.10.2024). Since the petitioner failed to appear on 31.03.2023, the trial Court issued non-bailable warrant against the petitioner and on the same day, he filed petition in Crl.M.P. No.1223 of 2023 under Section 70 (2) Cr.P.C seeking cancellation of non-bailable warrant against the petitioner and trial Court imposed condition to deposit 20% of the cheque amount and posted the matter to 09.06.2023. Feeling aggrieved by the said order, petitioner/ accused filed the instant criminal petition.
The grounds urged by the petitioner in this petition are, the respondent No.2 failed to produce any document showing that he is running business and taking advantage of blank cheques and promissory notes of the petitioner, filed the complaint against him, on the date of issuing non-bailable warrant, he went to the trial Court and since his name was wrongly called, he could not appear before the learned Presiding Officer. On the same day, he filed a petition under Section 70 (2) Cr.P.C and imposed condition of deposit of 20% of cheque without assigning reasons.
Heard both sides and perused the material available on record including the impugned order dated 31.03.2023.
Learned counsel for the petitioner submitted that learned trial Court has no authority to impose the condition to deposit 20% of the cheque amount and without giving any opportunity to the petitioner and without assigning justifiable reasons, the learned trial Court imposed the said condition and it is nothing but punishment to the petitioner. Further, respondent No.2 did not file any application and examination of petitioner is not completed. While submitting arguments, learned counsel for the respondent No.2 fairly conceded to relax the condition in respect of deposit of 20% of cheque amount so as to proceed further in the main case.
A perusal of the docket order dated 31.03.2023 shows as under:
“ Heard, NBW is cancelled with a direction to deposit 20% of cheque amount by 09.06.2023.”
As rightly argued by the learned counsel for the petitioner, the Court may order the drawer of the cheque to pay interim compensation to the complainant –
in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and
in any other case, upon framing of charge.
It is not the version of the respondent No.2 that he has filed any petition seeking interim compensation and during the course of arguments, fairly conceded to relax the condition in respect of deposit of 20% of cheque amount. As per Section 143-A of the Act, after examination of the petitioner, if he pleads not guilty only, the court may order for deposit of 20% of the cheque amount and that too, after assigning justifiable reasons.
It is not the version of respondent No.2 that the petitioner/ accused continuously absent before the trial Court and the learned counsel for respondent No.2 fairly conceded to relax the condition.
Record clearly reveals that on every adjournment, petitioner appeared before the learned trial Court and on the date of issuance of non-bailable warrant on 31.03.2023 also, he went to the trial Court and for the reason stated supra he could not appear before the learned presiding officer and immediately after issuance of non-bailable warrant, on the same day i.e., 31.03.2023 itself, he filed the petition under Section 70 (2) Cr.P.C. So, negligence on the part of the petitioner shall not be attributed for his absence. Admittedly, the trial Court can impose reasonable condition to cancel the non-bailable warrant so as to secure the presence of the petitioner/ accused, to face trial. It is settled principle of law that while granting bail/ recalling NBW, the Court must not impose conditions by way of punishment and the conditions must be reasonable. Absolutely, no reasons are assigned by the trial Court and it is simply mentioned that non-bailable warrant is cancelled on a condition to deposit 20% of the cheque amount.
As per the version of the learned counsel for the petitioner/ accused, this Court suspended the order dated 31.03.2023 till disposal of this criminal petition vide order dated 06.11.2023 in I.A. No.1 of 2023 and in view of the said order, the learned trial Court cancelled the non-bailable warrant and directed the petitioner/ accused to furnish sureties as ordered earlier. As rightly argued by the learned counsel for the petitioner/ accused, there is no condition to produce sureties vide order dated 31.03.2023.
In the given facts and circumstances and for the foregoing reasons, this Court came to conclusion that the order passed by the learned trial Court is not sustainable and liable to be set-aside.
In the result, this Criminal Petition is allowed by quashing the order dated 31.03.2023 in Crl.M.P. No.1223 of 2023 in C.C. No.1028 of 2022 on the file of Judicial First Class Magistrate-cum-Junior Civil Judge, Alamuru, East Godavari District (as per the e-Courts website, case is transferred to Special Magistrate Court, Alamuru) and the non-bailable warrant issued on 31.03.2023 is cancelled on a condition to execute self bond for Rs.10,000/-with one surety for the like to the satisfaction of the learned Special Magistrate Court, Alamuru, within fifteen (15) days from the date of receipt of this order by the trial Court.
As a sequel thereto, pending miscellaneous petitions, if any, shall stand closed.