M/s.Nachi Exports v. 1.M/s.T.K.Thiruvengadam & Sons2.T.Selvam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 11-10-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL REVISION CASE Nos.575 & 581 OF 2007M/s.Nachi Exports, rep.by its ProprietorV.E.Periannan...Petitioner in both cases-vs-1.M/s.T.K.Thiruvengadam & Sons2.T.Selvam... Respondents in both casesRevisions under Sections 397 and 401 of the Code of CriminalProcedure. For petitioner : Mr.G.AnandCOMMON JUDGMENTThese revisions have been filed against the orders, dated27.02.2007, passed in M.P.Nos.653 and 654 of 2007 in C.C.No.4851 of 1996on the file of XVIII Metropolitan Magistrate, Saidapet, Chennai, wherebythe requests of the petitioner to declare second respondent as a'proclaimed offender' and to attach his properties, were rejected.

Briefly stating, the facts are as under :2.1. Petitioner is a proprietary concern, engaged in export ofcashew kernels. Respondent No.1 is a partnership firm and respondent No.2is the Managing Partner, who agreed with the petitioner to arrange cashewkernels for export, but he did not do so, after accepting the cheque, which later got bounced. In the first respondent firm, there were threepartners, by name, T.Selvam, T.Muthukrishnan and T.Vijayarangan, who aresiblings of second respondent. 2.2. Petitioner preferred a private complaint in C.C.No.4851 of1996 on the file of XVIII Metropolitan Magistrate Court, Saidapet, Chennai, against the respondents and the respondents were found guilty ofthe offence punishable under Section 138 of the Negotiable InstrumentsAct; whereby first accused was sentenced to pay a fine of Rs.5,000/-, indefault, to undergo simple imprisonment for three months and second https://hcservices.ecourts.gov.in/hcservices/ accused to undergo simple imprisonment for one year. It was furtherdirected to pay a compensation of Rs.11.00 lakhs to the de factocomplainant. Against the said conviction, Criminal Appeal No.262 of 2003was preferred by the respondents on the file of III Additional SessionsCourt, Chennai, and the said Court confirmed the conviction and sentenceon 29.01.2004.2.

Respondents carried the judgment of the appellate Court inrevision before this Court in Criminal R.C.No.853 of 2004 and this Court, on 14.03.2006, dismissed the revision, confirming the judgment of theappellate Court.2.

Subsequently, the petitioner had taken steps to get theNBWs executed against the respondents/accused through police, but the NBWagainst second accused could not be executed by the police, even though ontwo occasions, the XVIII Metropolitan Magistrate, Chennai, issued thesame. It is stated by the petitioner that the police were unable toexecute the warrant, since the accused was not available either in hisresidence or office. 2.

The sureties action was also taken by the said Court, but, on summoning them, they pleaded their inability to locate second accused.2.

Facing the failure to execute the NBW against secondaccused, the petitioner filed two petitions before the XVIII MetropolitanMagistrate Court, Saidapet, Chennai, in M.P.Nos.653 and 654 of 2007 under Sections 82 and 83 Cr.P.C., for the relief stated supra.2.

Both the petitions suffered dismissal at the hands of thesaid Magistrate. In the order passed in petition under Section 82Cr.P.C., the Magistrate observed that on a perusal of the records, the Court found that the report submitted by the Inspector of Police was notsufficient to declare the accused as a 'proclaimed offender'. Inasmuch asthe petition under Section 83 is concerned, the observation of the Magistrate goes to the effect that since the accused was never declared asa proclaimed offender, the de facto complainant cannot seek attachment ofthe properties of the accused and that he may seek remedy before the District Collector, as per the provisions contemplated under the RevenueRecovery Act. 2.

Aggrieved over the said orders, the petitioner is nowbefore this Court, with these revisions.3. In this context, it is profitable to mention Section 82Cr.P.C., which reads as follows :"82. Proclamation for person absconding.- (1) Ifany Court has reason to believe (whether after takingevidence or not) that any person against whom awarrant has been issued by it has absconded or is https://hcservices.ecourts.gov.in/hcservices/ concealing himself so that such warrant cannot beexecuted, such Court may publish a writtenproclamation requiring him to appear at a specifiedplace and at specified time not less than thirty daysfrom the date of publishing such proclamation. (2) The proclamation shall be published asfollows :- (i) (a) it shall be publicly read in someconspicuous place of the town or village in whichsuch person ordinarily resides ;(b) it shall be affixed to some conspicuouspart of the house or homestead in which such personordinarily resides or to some conspicuous place ofsuch town or village ;(c) a copy thereof shall be affixed to someconspicuous part of the Court-house ;(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published ina daily newspaper circulating in the place in whichsuch person ordinarily resides.

Counsel on record for the petitioner had taken notice tosecond accused in these revisions, but, they have been returned, with anendorsement 'left'.

At the time of admission, this Court passed an order on20.07.2007, recording the above said return of the notice with endorsement'left' and observed that a perusal of the materials available on recorddiscloses that the second accused all along contested the matter and evenappeared before this Court through a counsel at the time of final hearingof the revision petitions and, therefore, this Court was constrained todirect the Inspector of Police concerned viz., Inspector of Police, Panruti, to find out the whereabouts of second respondent and, thereafter, serve the notice.

After the above said direction by this Court, it is learntthat the Inspector of Police, Panruti, took frantic efforts to serve thenotice on second accused, but in vain. So, he filed an affidavit to thateffect before this Court along with the certificates of VillageAdministrative Officers and the statements of Head Constable, who weredeputed for the said purpose. The Village Administrative Officer of Panruti Town and the Village Administrative Officer of Laxminarayanapuram, Panruti Taluk, have given certificates to the effect that second accusedis not residing in the address, available in the records. The HeadConstable has stated that he inquired the brother of second respondent, but he told that he did not know his whereabouts. On 09.07.2007, the Sub-Inspector of Police (Law & Order) requested the Superintendent of PostOffices, Cuddalore Division, to furnish the address of second accused, whowas previously working as a Personal Assistant in the said Department. Pursuant to the said request, the Superintendent of Post Offices, in hisreply, gave the address of second accused. The Village AdministrativeOfficer of Laxminarayanapuram has stated in his certificate that in theaddress furnished by the Superintendent of Post Offices, the secondaccused was not residing.

Producing the above said certificates and statements, the Inspector of Police, Panruti, affirmed in his affidavit that besides theabove said attempts, he contacted one of the brothers of second accused, by name, Murugesan, who stated that second accused had left his familylong back and he lost contact with him since then and that in spite ofrepeated and necessary efforts, he could not find out second accused, toserve notice, as per the direction of this Court.

The above said statements are self-explanatory, to show thatsecond accused has been wilfully avoiding the process of the Court and isevasive of NBW. At this juncture, the Court is left with no other optionexcept to adopt the procedure contemplated under Section 82 Cr.P.C. Thereare sufficient materials for reaching a conclusion that second accused ishaving knowledge of the Court proceedings, including issuance of NBW bythe Court, on more than one occasion. It is also to be seen that he had https://hcservices.ecourts.gov.in/hcservices/ been effectively participating in the proceedings before the appellateCourt and this Court.

In view of the factors mentioned above, this Court directsthe XVIII Metropolitan Magistrate, Saidapet, Chennai, to adopt theprocedure, adumbrated under Section 82 Cr.P.C. and, after exhausting theavenues, pass necessary orders, in accordance with law.

In so far as the relief under Section 83 Cr.P.C. isconcerned, the attachment of movable and immovable properties or bothbelonging to the proclaimed person will arise only after issuance ofproclamation and, hence, presently, the petition under Section 83 is notmaintainable. The petitioner is at liberty to renew his petition under Section 83 at a later point of time, if the circumstances so warrant.

With the above direction and observations, these revisionsare disposed of. dixitSd/-Asst. Registrar/true copy/ Sub Asst. RegistrarTo,1. The XVIII Metropolitan Magistrate, Saidapet.2. The Inspector of Police, Panruti.3. The Public Prosecutor, High Court, Madras.4. The Chief Metropolitan Magistrate, Egmore, Chennai.VRK(CO)dcp/23.10 CRL.R.C.Nos.575 & 581 of 2007