R.K. Traders v. Aruj Highways
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 35459 of 2025 R.K. Traders State Of U.P. And 4 Others Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) : Raunak Gupta, Vaishali Singh : G.A. Court No. - 75 HON'BLE VIKAS BUDHWAR, J. 1. Heard Sri Raunak Gupta, learned counsel for the applicant and Sri K.K. Vishwakarma, learned A.G.A. for the State. 2. In view of the order, which is being proposed to be passed today, notices are not been issued to O.P. No.2. 3. This is an application under Section 528 of BNSS preferred by the applicants for taking steps for securing the appearance of the accused before the Trial Court and direct the Commissioner of Police, Agra and Commissioner of Police, Bhopal for ensuring the same as well as further direct the Trial Court to take all the steps as permissible under law for arresting the accused in Complaint Case No. 199/2019 [R.K. Traders Vs. Aruj Highways] under Section 138 of Negotiable Instrument Act, Police Station Hariparvat, District Agra, pending in the Court of Civil Judge, Junior Division, Court No. 6, Agra. 4. The applicant herein had earlier approached this Court while filing Application u/s 483 No. 95 of 2025, R.K. Traders vs. State of U.P. and others, wherein on 31.01.2025, the following orders have been passed:-
Legal Reasoning
"1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. The present application under Section 483 Cr.P.C. has been filed with a prayer to direct the learned Additional Chief Judicial Magistrate, Court No.5, Agra, to decide the Complaint Case No. 149 of 2019, under Section 138 of Negotiable Instrument Act, Police Station Hariparvat, District Agra expeditiously within a stipulated period. 3. It is submitted by learned counsel for the applicant that the aforesaid case was filed 2 NA528 No. 35459 of 2025 in 2019 and the summoning order was passed against the opposite party no.2 but the matter is still pending at the stage of appearance of opposite party no.2. The opposite party no.2 never appeared before the Court concerned even punitive processes were issued against him. He is adopting delaying tactics in disposal of the case. 4. I have considered the submissions and perused the record. 5. It reveals from the perusal of the order sheets that the aforesaid case is pending since 2019 at the stage of appearance of opposite party no.2. He is not cooperating with the progress of the case. It is reminded that the criminal Courts are never toothless or powerless to ensure compliance of its own orders by the concerned police and administrative authorities. They have got ample powers for the same under law itself. The trial court is expected to invoke its power to ensure service of process upon the opposite party no.2, which is sent under its seal and order in order to procure his presence. 6. In the circumstances, the Court concerned is directed to invoke the powers given to it under law to ensure the presence of the opposite party no.2 by sending appropriate process to him within three months from the date of production of certified copy of this order before it and thereafter all endeavours shall be made by it for expeditious disposal of the case, if there is no legal impediment. 7. It is also made clear that the Court / Presiding Officer is not the only stake holder in the trial and disposal of a case, hence, besides the P.O. concerned, all the stake holders i.e. police and executive authorities, counsels, parties to the case, staff etc. are also made bound by this order and it will be their responsibility also to assist the Court in every manner for the expeditious disposal of this case.
Decision
8. With the above observations, the application stands disposed of." 5. Learned counsel for the applicant has submitted that despite the fact that the present proceedings under Section 138 of the N.I. Act is pending since 2019 and further the applicant happens to be the complainant stationed at Agra, whereas the O.P. No.2 is in Bhopal (Madhya Pradesh), but despite orders of non-bailable warrant, Section 82 is underway, but his anxiety is that the O.P. No.2 is avoiding participation on account whereof, the proceedings are not being given a logical conclusion. Learned counsel for the applicant has produced before this Court a copy of the application under Section 528 of BNSS No.7352 of 2025, M/s C.R.D. Foods Private Ltd. vs. State of U.P. and others, wherein on 07.04.2025, the following orders were passed:- 3 NA528 No. 35459 of 2025 "1. A compliance affidavit has been filed by Shri Shailesh Kumar Pandey claiming himself to be Deputy Inspector General of Police/ Senior Superintendent of Police, Mathura which is taken on record. 2. Heard Shri Sunil Kumar, learned counsel for the applicant and Sri Pankaj Saxena, learned State Law Officer for the opposite party nos. 1, 2 and 3 as well as Shri Shankar Jiwal, IPS, Director General of Police, Head of Police Force, Tamil Nadu, Chennai- 600 004 through video conferencing. 3. This application under Section 528 BNSS has been filed to direct the Additional S.P. (Crime), Mathura to comply with the order dated 17.12.2024 passed by the court below in Complaint Case No. 19691 of 2022 (M/s C.R.D. Foods Pvt. Ltd. v. Chennai Fruits & Another), under Section 138 N.I. Act, P.S. Govind Nagar, District Mathura pending in the court of Judicial Magistrate, Room No. 2, Mathura. 4. This Court entertained the present application and proceeded to pass the order dated 12.03.2025 which reads as under: "1. Heard Sri Sunil Kumar I, learned counsel for the applicant and Sri Sunil Kr. Kushwaha, learned A.G.A. for the State. 2. The instant application has been filed to direct the Additional S.P. (Crime), Mathura to comply with the order dated 17.12.2024 passed by the court below in Complaint Case No. 19691 of 2022, under Section 138 N.I. Act, P.S. Govind Nagar, District Mathura and to ensure appearance of the accused before the trial court. 3. Contention of learned counsel for the applicant is that the applicant is complainant of the complaint case No.19691 of 2022, pending in the court of Judicial Magistrate, room No.2, Mathura wherein the summoning order was passed on 14.11.2022. However, despite issuance of summoning order and subsequently the bailable warrant, the accused did not appear before the court below and the applicant preferred an application u/s 483 No. 1379 of 2023 before this Court to expedite the trial which was disposed of by order dated 6.12.2023, directing the court below to decide the complaint case expeditiously. Thereafter, the court below issued N.B.W. against opposite party Nos. 4 & 5 and when no action was taken, then considering the fact that accused are residents of Tiruvallur, Tamil Nadu, the court below issued N.B.W. against opposite party Nos. 4 & 5 and sent the same to Director General of Police, Tamil Nadu along with a letter on 25.1.2024 and, subsequently, again on 23.2.2024 and 7.3.2024, for execution of N.B.W. against opposite party Nos. 4 & 5. However, the presence of accused could not be ensured by the Tamil Nadu police also. 4. It is further submitted that the court below again issued N.B.W. on 25.4.2024, 4 NA528 No. 35459 of 2025 27.5.2024, 3.6.2024, 24.6.2024, 3.7.2024 and 13.8.2024 against opposite party Nos. 4 & 5 and sent the same to the Home Secretary, Tamil Nadu along with the letter for execution, but even then the presence of accused could not be ensured due to non- execution of the warrants. Thereafter, the court below issued non-bailable warrant against opposite party Nos. 4 & 5 and sent the same to the Chief Secretary, Tamil Nadu on 30.9.2024 for execution. However, when the N.B.W. could not be executed by the Chief Secretary, Tamil Nadu, the court below issued N.B.W. as well as process under Section 82 Cr.P.C. against opposite party Nos. 4 & 5 and sent the same again to the Chief Secretary, Tamil Nadu, but no action was taken. On 11.11.2024 an application was filed on behalf of the accused by an advocate under Section 70(2) Cr.P.C. which was dismissed for want of prosecution as no one appeared to press this application and the presence of the accused could not be ensured by the Mathura Police as well as the Tamil Nadu Police. Thereafter, the court below again issued process under Sections 82 and 83 Cr.P.C. on 11.11.2024 and sent it to the Home Secretary, Tamil Nadu for execution, but even then the presence of the accused could not be ensured. The court below again on 17.12.2024 sent N.B.W. as well as process under Section 82 and 83 Cr.P.C. to the Additional Superintendent of Police (Crime) Mathura who is the District Nodal Officer (Summon Cells) Mathura, but the presence of the accused could not be ensured till date. 5. The above action shows sheer negligence not only on the part of Mathura Police, but also on the part of Director General of Police, Tamil Nadu as well as the Home Secretary, Tamil Nadu and the Chief Secretary, Tamil Nadu. As per the Cr.P.C., though it is the duty of the police officer to execute the warrant and other coercive processes issued against the accused, even then the Mathura Police as well as the Director General of Police, Tamil Nadu and the Home Secretary, Tamil Nadu have failed to perform their duties. 6. In view of the above, the S.S.P., Mathura is directed to file his personal affidavit, mentioning the reason as to why the coercive process of the court, which includes N.B.W. as well as process under Sections 82 and 83 Cr.P.C., was not executed against the accused persons. 7. This Court further directs the present Director General of Police, Tamil Nadu to appear before this Court through video conferencing on the next date of listing to explain as to why appropriate action may not be taken against him as he failed to discharge his duties, regarding execution of N.B.W. as well as process under Sections 82 and 83 Cr. P.C. despite receiving several letters from Judicial Magistrate, Court No.2, Mathura, U.P. 5 NA528 No. 35459 of 2025 8. Though repeated letters were also sent to the Home Secretary as well as Chief Secretary, Tamil Nadu, at this stage this Court is not summoning them, considering the fact that it is the duty of police officers, may be of Sub Inspector or Director General of Police, Tamil Nadu to execute the N.B.W. as well as other coercive processes of the court against the accused. 9. Put up this case as fresh on 7.4.2025 as fresh. 10. Registrar (Compliance) is directed to send a copy of this order to the Senior Superintendent of Police, Mathura; the Director General of Police, Tamil Nadu; the Home Secretary, Tamil Nadu as well as Chief Secretary, Tamil Nadu. 11. Office is also directed to send the link to the Director General of Police, Tamil Nadu for his appearance through video conferencing on the next date." 5. Shri Pankaj Saxena, learned counsel for opposite party nos. 1, 2 and 3 on the strength of the averments made in the affidavit has sought to submit that there has been compliance of the order passed by this Court as due communication in this regard has directed by the court below was made to the police officials in Tamil Nadu. 6. Shri Shankar Jiwal, IPS, Director General of Police, Head of Police Force, Tamil Nadu, Chennai who has appeared through video conferencing has referred to a communication dated 05.04.2025 bearing Rc.No. 6686803-1/Crime 4(3)/ 2025 addressed to the Registrar General of High Court of Judicature at Allahabad has invited attention of the Court towards para 5 and 6 so as to contend that the order has been complied with. Para 5 and 6 of the communication is being quoted hereinunder: "5. In this regard, the Commissioner of Police, Greater Chennai has sent a report stating that,on 20.03.2025 the accused Manivannan was arrested by the Inspector of Police (L&O), K-10 Koyambedu Police Station in Greater Chennai Police and produced before the V MM Court, Egmore, Chennai. Further, the Magistrate ordered to hand over the aforesaid accused to the Sub Inspector of Police, Govind Nagar Police Station who was also present in the above Court for being further produced before the Presiding Officer, Additional Court, Mathura, Uttar Pradesh sitting at Mathura on 22.03.2025 at 1700hrs. 6. Accordingly, on 20.03.2025 the aforesaid Manivannan was escorted to Uttar Pradesh by the UP Police Personnel. Report of the Commisioner of Police, Greater Chennai Police received in the reference 4th cited is enclosed herewith for kind reference." 7. The fact that the accused was arrested and was produced before the Court of V MM Court, Egmore, Chennai has not been disputed by the learned counsel for the 6 NA528 No. 35459 of 2025 applicant. 8. Looking into the totality of the matter and also the fact that the relief which had been sought, has already been accorded, thus, the application has rendered infructuous. 9. Accordingly, the application is consigned to record. 10. The presence of Shri Shri Shankar Jiwal, IPS, Director General of Police, Head of Police Force, Tamil Nadu, Chennai through video conferencing is exempted." 6. Learned counsel for the applicant submits that appropriate direction be issued to the court below to take appropriate steps for ensuring presence of O.P. No.5. 7. Sri K.K. Vishwakarma, learned A.G.A. on the other hand submits that once a proceedings is being initiated, which is in accordance with law, then it has to be given a logical conclusion and the present proceedings are under Section 138 of N.I. Act, thus in view of the provisions contained under Sub- Section (3) of the Section 143 of the N.I. Act, they have to be decided within a period of six months. According to him, a direction be issued to the court below to pass an appropriate order for ensuring presence while taking appropriate measures in that regard. 8. Having heard the submissions so made across the Bar and looking into the aspect of the matter, that this is a second application, as earlier the applicant had preferred an Application u/s 483 No.95 of 2025, decided on 31.01.2025, this Court in peculiar facts and circumstances, hereby disposes the application requiring the court below, before whom the proceeding is pending to taken appropriate measures for ensuring the presence/ arrest of the O.P. No.5 while issuing appropriate directions to the enforcing agencies at Bhopal (Madhya Pradesh). 9. The Court has no reason to disbelieve that prompt action would be taken by the court below strictly in accordance with law in order to facilitate disposal of the proceedings. 10. With the said observations, application stands disposed of. September 16, 2025 N.S.Rathour (Vikas Budhwar,J.) Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad