BAIL APPLN./210/2020 of SANJAY Vs THE STATE (GNCT OF DELHI) & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI+BAIL APPLN. 210/2020 & Crl.M.A. 3140/2020 (interim bail)SANJAY..... PetitionerThrough:Mr. Lohit Ganguly, Mr. Ajay Kumar& Mr. Abhay Ram, Advs.

versus

THE STATE (GNCT OF DELHI) & ANR..... RespondentsThrough:Mr. Ashok Kumar Garg, APP forStatewithSISachinDhama,PS:Narela.

CORAM:

HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

O R R%27.02.2020

The petitioner seeks bail pending trial of Complaint Case No.2004/2018 under section 138 of Negotiable Instruments Act, 1881 pendingbefore the court of the learned Metropolitan Magistrate, Rohini Courts,Delhi.

2.The case arises from dishonour of cheque in the sum ofRs.4,00,000/- which was issued by the petitioner to respondent No. 2. Fromthe record it appears that there were repeated defaults in appearance by thepetitioner before the Magistrate's Court, which led to initiation ofproceedings against the petitioner under section 82 of the Code of CriminalProcedure, 1973.

3.Learned counsel for the petitioner states that the petitioner had infactentered into settlement with the respondent on 28.08.2018 under the aegisof Mediation Centre, Rohini Courts, Delhi, under which settlement thepetitioner undertook to pay certain instalments to respondent No. 2.

4.Counsel submits that Non-Bailable Warrants (NBWs) were issuedagainst the petitioner by the Magistrate by order dated 25.05.2019 for hisnon-appearance and subsequently proceedings were initiated under section82 of the Cr.P.C. vide order dated 26.09.2019. On 21.12.2019 the petitionerfiled an application seeking cancellation of the NBWs and for dropping ofproceedings under section 82 of Cr.P.C., which application came to be listedon 07.01.2020. However it is contended that on 07.01.2020, due to certainunavoidable reasons, the petitioner reached the court late and by that timetheapplicationstoodadjournedto14.01.2020.On14.01.2020theMetropolitan Magistrate dismissed the petitioner’s application seekingcancellation of NBWs and dropping of proceedings under section 82Cr.P.C.; and remanded the petitioner to judicial custody on 16.01.2020. Thepetitioner then moved an application under section 437 Cr.P.C. seekinggrant of bail, which application was also dismissed. Thereafter, thepetitioner moved bail application under section 439 Cr.P.C. before learnedAdditional Sessions Judge, which has also been rejected ; and that has led tothe filing of the present proceedings.

5.The reasoning given by the ASJ for dismissing the bail application isthe following :

"I considered the submissions of Ld. Counsel for applicant/accused and Ld. Addl. PP for the State as submitted above. Iperusedtheorderdated16.01.2020videwhichbailapplication of accused was dismissed by the Trial court. It isobserved in the order that when accused was taken in tocustody on 14.01.2020, on account of his continuousabsence, due to which proceedings u/s 82 Cr. PC were alsoinitiated against him. It has also been stated in the order that

the accused is habitual absentee and consistent defaulter tomake false promises and earlier also NBWs were issuedagainst him and were cancelled upon his assurance that heshall appear on each and every date and shall also honourthe settlement arrived at between the parties which he failedto abide. During arguments this bail application, it has notbeen argued by ld. Counsel for applicant/accused thatapplicant/accused is ready to abide by the settlement arrivedat between him and complainant. It appears that he hasdeliberately neither abide the settlement nor appeared in thecourt to face the trial and remained absent continuously. Iam of the view that such person is not entitled for bail at all.Therefore, bail application of the accused is rejected.

(Emphasis supplied)"

6.By order dated 27.01.2020, this court directed the petitioner to depositthe sum of Rs.50,000/- before the Trial Court ; and also directed the State tofile status report in respect of the petitioner's antecedents.

7.The deposit of Rs.50,000/- stands confirmed.

8.Status report dated 18.02.2020 has been handed-up in court wherebyit is stated that the petitioner is working as 'Beldar' with MCD, Narela Zoneand earns salary of Rs.30,000/- per month.It is also stated that thepetitioner's wife is residing in her own house alongwith her mother-in-lawand three children aged 20, 16 and 13 years.

9.Learned counsel for the petitioner fairly states at the bar, that while asettlement deed was indeed signed by the petitioner but considering thepetitioner's financial status and resources, it is not possible for the petitionerto honour the settlement so made. Respondent No. 2, who is present in courtand is identified by the investigating officer, states that, while he does not

wish to withdraw the proceedings but he has no objection if the petitioner isreleased on bail. Respondent No. 2 further states that he is not agreeable toentering into re-negotiated settlement with the petitioner and that his onlyconcern is to get-back the money which he had lent to the petitioner. He alsoagrees that keeping the petitioner in custody will only make the possibilityof getting his money back more remote, inasmuch there is no other person inthe petitioner's family who can arrange funds for refund of the loan.

10.As recorded above, the petitioner has been in judicial custody since14.01.2020 ; and the reasons for keeping the petitioner in custody is hisdefault in appearance before the Magistrate and pendency of consequentialproceedings under section 82 Cr.P.C. It is not the case that the petitioner isin prison serving any sentence arising from the dishonour of the cheque.

11.The scope and purport of issuing Non-Bailable Warrants has beenconsidered by the Supreme Court inter alia in Inder Mohan Goswami andAnother vs. State of Uttaranchal and Others reported as (2007) 12 SCC 1explaining when Non-Bailable Warrants should be issued, relevant paras ofwhich we reproduce below :-

"53. Non-bailable warrant should be issued to bring person tocourt when summons or bailable warrants would be unlikely tohave the desired result. This could be when:

• it is reasonable to believe that the person will not voluntarilyappear in court; or

• the police authorities are unable to find the person to servehim with summon; or

•it is considered that the person could harm someone if notplaced into custody immediately.

55. In complaint cases, at the first instance, the court shoulddirect serving of the summons along with the copy of the

complaint. If the accused seem to be avoiding the summons, thecourt, in the second instance should issue bailable warrant. Inthe third instance, when the court is fully satisfied that theaccused is avoiding the court's proceeding intentionally, theprocess of issuance of the non-bailable warrant should beresorted to. Personal liberty is paramount, therefore, wecaution courts at the first and second instance to refrain fromissuing non-bailable warrants.

56. Thepowerbeingdiscretionarymustbeexercisedjudiciously with extreme care and caution. The court shouldproperly balance both personal liberty and societal interestbefore issuing warrants. There cannot be any straitjacketformula for issuance of warrants but as general rule, unlessan accused is charged with the commission of an offence of aheinous crime and it is feared that he is likely to tamper ordestroy the evidence or is likely to evade the process of law,issuance of non-bailable warrants should be avoided.

57. The court should try to maintain proper balance betweenindividual liberty and the interest of the public and the Statewhile issuing non-bailable warrant."

(Emphasis Supplied)

12.What emerges from meaningful reading of the above observationsof the Supreme Court is that in matter such as the present one, which is acomplaint case involving dishonour of cheque; and in which the petitionerwas produced before the court against Non-Bailable Warrants issued byreason of repeated non-appearance of the petitioner and the pendency ofproceedings under section 82 Cr.P.C., the purpose of issuing Non-BailableWarrants stands served once the petitioner has been produced before thecourt. No purpose is being served thereafter by retaining the petitioner injudicial custody by rejecting his bail application.

13.In this view of the matter, I deem it appropriate to admit the petitioner

to bail, subject to the petitioner furnishing personal bond in the sum ofRs.10,000/- with one surety in the like amount from family member to thesatisfaction of the Trial Court. I further direct that the sum of Rs.50,000/-deposited by the petitioner before the Trial Court as per order dated27.01.2020 made in these proceedings, be released to respondent No. 2within one week.

14.It is made clear that the effect of the petitioner not honouring thesettlement arrived at with respondent No.2 will be considered by theMagistrate, without being influenced by any observations made in this order.It is further directed that as condition of the bail granted, the petitionershall ensure that he is present before the Magistrate's Court on each date ofhearing, unless exempted from such appearance in accordance with law.15.The petition stands disposed of.

FEBRUARY 27, 2020/uj

ANUP JAIRAM BHAMBHANI, J.