Susenjit Mallick & Ors v. State & Anr

ORDER %

10.10.2012 Thesetwo petitionshave been movedby the petitionersunderSection 482 CrPC seeking quashing of proceedings and order dated 22.11.2011 passedintwo complaintcasesi.e. CC No.20397/2010& CC No.20396/2010 filed by the complainant Bank i.e. respondent No.2 herein under Section 138 read with Sections 141 & 142 of Negotiable Instrument Act.

¶2Arguments heard.

¶3On behalf of petitioners, it has been submitted that while moving an applicationunder Section 145 (2) NI Act, a plea was taken that accused No.5 and 6 are not involved in the day to day business and affairs of the companyand have no knowledgeaboutthe allegedtransactionbetweenthe complainant bank and accused company.

¶4It is submitted by learned counsel for the petitioners that all the three petitioners are from Kolkata, West Bengal and though these petitions were filed praying for quashing the proceedings in Complaint Cases No.20397/2010 & CC No.20396/2010 and setting aside the order dated

22.11.2011, the petitioners intend to move appropriate application before learned Trial Court and though not specifically prayed, the personal appearance of the petitioners may be exempted before learned Trial court during the pendency of the aforesaid complaint cases.

¶5On behalf of respondent No.2, it is submitted that though these petitions were not filed for seeking exemption from personal appearance, still respondent No.2 has no objection if personal appearance of petitioners No.2 and 3 is permanently exempted through counsel but has objection regarding exemption to be granted to petitioner No. 1.

¶6All the petitioners are resident of Kolkata, West Bengal. They are seeking exemption from personal appearance before learned Trial Court with assurance that they will be represented by their counsel in the Trial Court which will not in any case affect the speedy disposal of these summary trial cases.

¶7Permanent exemption from personal appearance of petitioners No. 2 and 3 being not opposed, they are granted permanent exemption from personal appearancebefore learned Trial Court during trial of Complaint Cases No.20397/2010 & CC No.20396/2010 provided that they are duly representedthroughtheircounselon each and every date ofhearingwithout any disputeregardingtheiridentitybeingraisedbeforelearnedTrialCourt.

¶8So far as permanentexemptionsoughtfor on behalfof petitionerNo.1 SusenjitMallickis concerned,it has been opposedon the groundthat he is the main accused but that itself is no ground to decline the prayer.

¶9In the case M/s Bhaskar Industries Ltd. vs. M/s Bhiwani Denim & ApparelsLtd. iSc Ors. (2201) 7 SCC 401, The Apex court has dealt with grantof exemptionparticularlyinthe contextof casesunder Section138 NI Act and observed as under '14. The normal rule is that the evidence shall be taken in the presenceofthe accused.However, even in the absenceofthe accused such evidence can be taken but then his counsel must be presence in the court,providedhe has beengrantedexemptionfrom attendingthe court. The concern of the criminal court should primarily be the administrationof criminaljustice. For that purpose the proceedings of the court in the case should registerprogress. Presence of the accused in the court is notfor marking his attendancejust for thesake of seekinghim in the court. It is to enable the court to proceedwith the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into accountthe magnitudeof the sufferingswhich a particular accusedperson may have to bear with in order to make himselfpresent in the court in that particular case.

¶15These are days when prosecutions for the offence under Section 138 are gallopingup in criminalcourts. Due to the increaseof inter-State transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecutionunderSection138 ofthe N1Act the trial shouldbethat of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the magistrate to consider how he can relieve such an accused of the great hardships, without causingprejudice to theprosecution proceedings.' Thepositionwas summarizedin para 19 of the reportas under '19. Theposition, therefore,bogs down to this: It is withinthepowers of a magistrateand in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistratefinds that insistenceof his personalpresencewould itself inflictenormoussufferingor tribulationsto him, and the comparative advantage would be less. Such discretionneed be exercisedonly in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistratefeels that dispensingwith the personal attendance of the accused would only be in the interests ofjustice. However, the magistrate who grants such benefitto the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistratethroughhis duly authorisedcounselprayingfor affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.'

¶10The petitioners have faced this hardship as reflected in the proceedings dated 22.11.2011 of the Trial Court, which is extracted as under An applicationfor exemptionis movedon behalf ofaccused No.2, 5 & 6 on the ground that the accused are residents of Kolkata and could not arrange for the tickets. In view of the submissions made, exemptionis allowedfor todayonly.'

¶11Takinginto considerationthe hardshipthe petitionerNo.l is hkely to face by puttingin appearancebefore learnedTrial Court on each and every date ofhearing,inview ofthe natureofoffence,atleastthathardshipcan be curtailedon undertakingby the petitionerNo.l that he shall not disputehis identityand his counselwouldbe there on each and everydate ofhearingto represent him during the trial and also to cross examine the witnesses. Ratherthis will facilitatein expeditiousdisposalof the complaintcases.

¶12Petitioner No.l is granted permanent exemption from personal appearance before learned Trial Court during trial of Complaint Cases No.20397/2010 & CC No.20396/2010 subject to the condition that he is duly representedthrough his counsel on each and every date of hearing withoutany disputeregardinghis identitybeing raised before learnedTrial Court.

¶13However,if at any stageofthe proceedings,the learnedTrial Courtis of the view that at some stage, personal appearance of petitioners is required,the Trial Courtmay securetheir presence.

¶14No other relief has been prayed for.

¶15In terms of above directions, both the petitions stand disposed of.

¶16All pendingapplicationsalso standdisposedof.

¶17Copy of the order be given dasti. OCTOBER 10, 2012 'St

$-54 & 55 * in IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 266/2012 SUSENJIT MALLICK & ORS Petitioners Through : Mr.Vikramit Banerjee, Adv. versus STATE & ANR Respondents Through : Ms.RajdipaBehura, APP for State- R-1. Mr.Anuj Jain, Adv. for R-2. AND + CRL.M.C. 267/2012 SUSENJIT MALLICK & ORS Petitioners Through ; Mr.Vilo-amjitBanerjee, Adv. versus STATE & ANR Respondent Through : Ms.Rajdipa Behura, APP for State- R-1. Mr.Anuj Jain, Adv. for R-2. CORAM: HON'BLE MS. JUSTICE PRATIBHA RANI