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(2023) Law Today Live Doc. Id. 18108
Decided on: 26.05.2023
Alongwith
R/Special Criminal Application No. 6309 of 2023
Appearance:
Mr Vaibhav N Sheth(5337) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2,2.1,2.2,2.3
Mr JK Shah, App for the Respondent(s) No. 1
A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Code of Criminal Procedure, 1973 (2 of 1974), Section 71, 73 -- Cheque bounce complaint – Non-bailable warrants -- Non-bailable warrant should normally not to be issued if presence of the accused could be secured -- Warrant could be issued when the person will not voluntarily appear in Court or police authorities are unable to find the person to serve him with a summon -- The Court should avoid issuance of non-bailable warrant in the first instance to secure presence of the accused and it should be applied as a last resort.
(Para 3)
B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Code of Criminal Procedure, 1973 (2 of 1974), Section 71, 73 -- Cheque bounce complaint – Non-bailable warrants – Bailable warrants -- Petitioners, who are the advocates, when came into knowledge with regard to issuance of non-bailable warrant, they immediately appeared before the concerned court requesting to convert the non-bailable warrant into the bailable warrant, for which the application was also preferred on the same day, however, the concerned court has not accepted the application on the ground that the complainant had not given “no objection” for the same – Held, non-bailable warrant deserves to be converted into bailable warrant -- Non-bailable warrant converted into bailable warrant – Conditions imposed.
(Para 1-5)
ORDER
M. K. THAKKER, J. –
1. Learned advocate Mr.Vaibhav Sheth has submitted that the petitioners, who are the advocates, are facing the trial under Section 138 of the Negotiable Instruments Act, 1881 and non-bailable warrant issued on 15.04.2023, which was referred in the Rojkam. He has submitted that when the petitioners came into knowledge with regard to issuance of non-bailable warrant, they immediately appeared before the concerned court requesting to convert the non-bailable warrant into the bailable warrant, for which the application was also preferred on the same day, which is at page no.78, however, the concerned court has not accepted the application on the ground that the complainant had not given “no objection” for the same.
1.2. Learned advocate Mr.Sheth has further submitted that the petitioners will give an undertaking to the effect that no any adjournment or no any lapse in remaining presence will be done in future. With the aforesaid submissions, learned advocate Mr.Sheth has prayed to convert the non-bailable warrant into bailable warrant.
2. This Court has considered the submissions made by the learned advocate for the petitioners and learned APP and also perused the matter. It transpires from the record that the non-bailable warrant was issued by the court below on 15.04.2023 and there is no any separate order, which shows that non-bailable warrant issued, only from Rojkam it reveals. That on the same day the application was preferred by the petitioners, who are the advocates, for converting non-bailable warrant to bailable warrant.
3. It is settled law that non-bailable warrant should normally not to be issued if presence of the accused could be secured. The warrant could be issued when the person will not voluntarily appear in Court or police authorities are unable to find the person to serve him with a summon. The Court should avoid issuance of non-bailable warrant in the first instance to secure presence of the accused and it should be applied as a last resort.
4. Considering the facts and circumstances of the present case, this Court is of the opinion that non-bailable warrant deserves to be converted into bailable warrant.
5. Accordingly, the non-bailable warrant issued by the learned trial court is converted into bailable warrant on the conditions that the petitioners shall:
(i) remain present before the Trial Court within a period of one week from the date of receipt of the writ of this order;
(ii) submit undertakings before the learned trial court stating that they will remain present on each date of the proceedings and cooperate with the proceedings and shall not take any unnecessary adjournment in the proceedings;
(iii) not change their residential addresses without prior permission of the learned trial court and also shall provide his Mobile Number.
6. This Court makes it clear that if the petitioners shall breach any of the conditions, the learned trial court shall take appropriate steps in accordance with law.
7. In the aforesaid observations and directions, the present petitions stand disposed of.
Direct service is permitted today.
Order Accordingly.
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