Atul Tripathi & Ors. v. Sanjay Bansal

1. Exemptions allowed subject to all just exceptions.

2. Applications standdisposed of. CRL.M.C. 2358/2016

3. Present petition has been filed by petitioners under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing of non-bailable warrants issued by learned Metropolitan Magistrate (North-West), Rohini Courts, Delhi, vide order dated 25.5.2016 passed in Complaint Case Registered as NT-1080/2014.

4. Learned counsel for the petitioners submits that petitioners (respondents no.2 to 5, before the trial court) are aggrieved by the non-bailable warrants issued against them on a complaint filed by respondent under Section 138 of the Negotiable Instruments Act. Counsel further submits the petitioners have moved an application under Section 70(2) ofthe Code of Criminal Procedure seeking cancellation of non-bailable warrants CRLM.C 2358/2016 „, Page 1 of[3] 2016:DHC:9042 issued against them, however, the said application has not been entertained by the trial court and the same has been adjourned for 4.7.2016. Counsel contends that the petitioners herein are willing to give an undertaking to remain present in Court on each and every date of hearing or as and when directed by the trial court. Counsel, thus, prays for adirection to the trial court to hear the application filed under Section 70 (2) of the Code of Criminal Procedure expeditiously and without instating upon the presence of the petitioners as the petitioners fear harassment atthehands ofthelocal Police. Learned counsel for the petitioners submits that it is asettled law that the trial court should not have required the presence ofthe accused before dealing with the application for cancellation ofnon-bailable warrants. In support ofthis argument, counsel for the petitioners has relied upon Prem Cashew Industries &Ors. v. Zen Pareo, reported at 88 (2000) DLT 59, more particularlypara 5, which reads as under: i^herefore, I hold that in thefacts and circumstances ofthis case since the cheque hadbeen presented at Delhi andalso notice issuedfrom Delhi, the courts atDelhi havejurisdiction to entertain the complaint. However, now coming to the challenge to the order dated 16.1.99, learned counsel submits that the court below ought to have, in thefirst instance, disposed ofthe application and only thereafter required thepresence ofthe accused ifthe needdid then arise. The court ought not to have, according to him, first required thepresence ofthe accused before dealing with the applicationfor cancellation of non-bailable warrants and that court having not decided the application insisting upon the accused to be present, has passed an order without applying its mind to the contentions raised in the applicationfor cancellation ofnon-bailable warrants. There appears to be agreatdeal offorce in this argument. Itis also contended that the application that has been moved mustfirst be decided before the consequences thereon can visit the accused. In this view ofthe matter, I hold that the order dated 16.1.1999 is bad and remand the matter to the Metropolitan Magistrate to first CRLM.C 2358/2016 Page 2 of[3] consider the application for recall ofthe non-bailable warrants bejorepassing any other order. "

6. I have heard learned counsel for the petitioners. Having regard to the submissions made by counsel for the petitioners and in view of the law laid down by this Court in the case ofPrem Cashew Industries &Ors. (supra), present petition is allowed. The trial court is directed to take up the application filed by the petitioners under Sections 70(2) ofthe Code of Criminal Procedure seeking cancellation ofNon-bailable Warrants on the next date of hearing at the first instance, without insisting on the appearance ofthe petitioners. Till the application filed by the petitioners under Section 70(2) of the Code of Criminal Procedure is decided, no coercive action will be taken against the petitioners.

7. Petition stands disposed ofinview of above.

8. DASTI. JUNE 20,2016 msr G.S.SISTANI, J (VACATION JUDGE) CRLM.C 2358/2016 Pages of[3]