Nadebasi Maji v. State Of Bihar — 1999 DIGILAW 69 (PAT)

Judgment Anil Kumar Sinha, J. 1. In this revision petition, the petitioner has challenged the order dated 25.9.98 passed by Sri V.N. Prasad, Judicial Magistrate, 1st Class at Chaibasa in C/1 Case No. 3/95, whereby the learned Magistrate rejected the petition filed on behalf of the petitioner under Section 205, Cr PC for dispensing his personal attendance in the Court. 2. The relevant facts, concerning this revision petition, are that one Arbind Kumar Sethia filed a complaint in the Court of the Chief Judicial Magistrate, Chaibasa, stating inter alia that he deposited a self cheque with the Bank of India, Chaibasa Branch, amounting to Rs. 1.28,057.00 to purchase the bank draft for the said amount and when his representative went to collect the bank draft, he was informed that no bank draft can be issued to him as per the direction of the Branch Manager and when the complainants representative contacted the Branch Manager and wanted to know the reasons for not handing over the draft, it was told to him by the Branch Manager (petitioner) that neither the draft will be handed over to him nor the cheque will be returned to him. The complainant smelling mischief on the part of the petitioner filed a complaint case in the Court of the Chief Judicial Magistrate, Chaibasa, bearing C/l case No. 3/95, which was registered under Sections 420, 427, 406 and 506 of the Indian Penal Code, which was dismissed by Sri S.S. Mishra, the then Judicial Magistrate, who held in his order dated 27.7.95 that no case under the aforesaid count has been made out. Against the order passed by the learned Magistrate, a revision was filed before the learned Sessions Judge, Singhbhum West at Chaibasa and the revision application was transferred to the IIIrd Additional Sessions Judge, Chaibasa, who was pleased to set aside the order of dismissal passed by the learned Magistrate and directed him to proceed with the case. Against the order passed by the learned Magistrate, a revision was filed before the learned Sessions Judge, Singhbhum West at Chaibasa and the revision application was transferred to the IIIrd Additional Sessions Judge, Chaibasa, who was pleased to set aside the order of dismissal passed by the learned Magistrate and directed him to proceed with the case. Thereafter, the learned Magistrate issued summons to the petitioner to appear in his Court whereupon the petitioner filed a petition under Section 205, Cr PC, through his lawyer praying therein that he is the Manager in the Bank of India and remains busy in his official duty and is also a heart patient so his personal attendance in the Court may be dispersed with and he may be represented through his lawyer under Section 205, Cr PC (copy of petition is Annexure 2). 3. It has been stated in the petition that the O.P. No. 2 (complainant) was maintaining two cash credit accounts with the Chaibasa Branch of Bank of India, out of which, there was heavy dues in one of the accounts, which was not being paid by the complainant in spite of repeated request. So, the Bank transferred the amount from the account No. 1 to the account No. 2 as per the Banking Rules to adjust the loan amount and, as such, no offence has been committed by the petitioners and the acts done by him was done in his official capacity as per the Banking Rules. 4. The learned Counsel appearing for the petitioner submitted before me that the petitioner has not committed any offence whatsoever, much lease, any misappropriation, which is evident from the fact that he had transferred the amount from one account to another belonging to the complainant and he was empowered to do so under the Banking Rules. 5. While relying upon a decision in the case of Punjab National Bank and others v. Surendra Prasad Sinha, AIR 1992 SC 1815 , the learned Counsel for the petitioner submitted that the Apex Court has held in the aforesaid judgment that when the principal debtor did not repay the bank loan, the bank as creditor can adjust it at maturity of the Fixed Deposit Receipts, deposited by the guarantor with the bank as security, though the debt became barred by limitation at the time of maturity of the said Fixed Deposit Receipts. Such adjustment would not amount to offences punishable under Sections 109, 114 and 409 of the Indian Penal Code. The Apex Court has also held that the judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. The learned Counsel, therefore, submitted that in view of the aforesaid decision of the Apex Court, even if the petitioner (Branch Manager) transferred the amount from one account to another to adjust the dues of one account from the other account of the complainant in which the amount was transferred from the loan account, the petitioner did not commit any offence and it cannot be assumed that while making such adjustment he acted with any mala fide or dishonest intention. Whatever he did, it was in the interest of the Bank and as Branch Manager of the Bank, he was justified in doing so. 6. The learned Counsel then relied upon another decision of this Court, in the case of D.K. Jhaver and others v. State of Bihar and others, 1996 (2) East Cr C 399 Pat, which is a single Benchs decision and in that decision it was held that: "While considering a petition under Section 205, Cr PC, the Court should have regard to the circumstance of each case, the condition of the accused, the necessity of their personal attendance and interest of justice. Rejection of such a petition as a matter of policy is illegal and violative of the provisions. Undisputedly, the petitioners are senior executives of Tablets (India) Ltd., which manufacturera/produces medicines, naturally, the petitioners being senior executives are bound to undertake tour in connection with the trade and business of the company and that being so, their personal attendance in Court is likely to affect the business of the Company including regular and proper manufacture, supply and distribution of medicines. No prejudice is likely to be caused to the prosecution also if prayer of the petitioners for allowing them to be represented through their lawyers under Sections 205, Cr PC is allowed. No prejudice is likely to be caused to the prosecution also if prayer of the petitioners for allowing them to be represented through their lawyers under Sections 205, Cr PC is allowed. Therefore, personal attendance of accused is exempted." The learned Counsel relied on the aforesaid decision and submitted that the aforesaid decision is fully applicable in the facts and circumstances of the present case, inasmuch, as the petitioner wanted exemption from his personal attendance in the case on the ground that he is the Branch Manager of the Bank and has since been transferred as Branch Manager, Bally Branch in the district of Hoogly in the State of West Bengal and has to remain physically present in the bank for day-to-day smooth working of the bank and he has also to attend various meetings in the Regional Office, Zonal Office, etc. and on this ground, it was prayed before the Court, that he is unable to attend and remain physically present in the Court. So, his personal attendance may be dispensed with. One of the ground was that the petitioner was a patient of heart disease for which medical certificate was also annexed and the Doctor had advised him not to undertake hazardous journey and if the petitioner was asked to attend the Court at Chaibasa by undertaking hazardous journey by bus for going to Chaibasa, that would adversely affect his health, but the learned Court below did not take into consideration the aforesaid relevant facts and rejected, the prayer made by the petitioner in a mechanical manner on the ground that since the petitioner has been charged with misappropriation of huge amount and has cheated the complainant so in view of the serious nature of case, he was not inclined to allow the prayer of the petitioner to dispense with his personal attendance in the Court which is manifestly erroneous and illegal. 7. By citing another decision in the case of K. Narayan Patra v. Gopinath Sahu, 1991 Cri LJ 3219, which is a Single Benchs decision of the Orissa High Court, the learned Counsel submitted that the facts of the case are similar to the facts of the case of the petitioner and in the decision referred to above, the order dispensing with the personal attendance of the Branch Manager of the Nationalised Bank was held to be proper by the Court. It was further submitted that no prejudice would be caused to the complainant, if the personal attendance of the petitioner is dispensed with in view of the facts and circumstances of the case. As such it was submitted that the impugned order passed by the learned Court below may be set aside and the personal attendance of the petitioner may be dispensed with. 8. On behalf of the State, decision in the case of Lily Begum v. Joy Chandra Nagbanshi, 1994 (2) SCC 39 , has been cited wherein the Apex Court held that : "Dispensation of personal attendance on the ground of accused being social worker and known to the village people is untenable." The facts of the said case are quite different from the facts of the present case since that was a case under Sections 376, 417 and 506 of the IPC, and in view of peculiar facts of the case, the Apex Court was pleased to direct the respondents to appear before the Trial Court on all the dates of hearings with certain exception. 9 The facts of the other decision in the case of Ram Harsh Das, Ajit Dutt v. State of Bihar and others, 1998 (1) All PLR 495 :1998 (1) East.Cr C 932, are also quite different from the facts of the present case and, as such, the same is not applicable in the facts of the present case. 10. The power conferred under Section 205(1) of the Cr PC upon a Court to dispense with personal attendance of the case is purely discretionary, and no hard and fast rule can be laid down nor sweeping generalisation can be made. In my view, whenever such prayer is made before the Court, the Court should consider the allegation, the facts and circumstances, the position of the petitioner seeking such relief and also that whether any prejudice will be caused to the prosecution if the personal attendance is dispensed with because the necessity of personal attendance in the Court on each and every date naturally causes in convenience and harassment to the accused and the Court has to see that the harassment is not out of the proportion to the seriousness of the allegation. 11. 11. In the instant case as it would appear that the act of the petitioner in transferring the amount from one account of the complainant to another account for the purpose of adjusting the heavy dues, which the complainant owed to the bank was not meant for making any gain by the petitioner, who was empowered under the Banking Rules to transfer the amount from one account to another account for the satisfaction of the loan amount in the interest of the bank, and as stated above, the Apex Court has held in the case of Punjab National Bank and others v. Surendra Prasad Sinha, (supra) that the bank was justified in adjusting the dues of the principal debtor from the Fixed Deposit Receipts by the guarantor of the bank as security and that was permissible. 12. It appears that the learned Court below did not seriously take into consideration the aforesaid facts while rejecting the prayer under Section 205, Cr PC made on behalf of the petitioner. There is nothing in the order passed by the learned Court below, which may show that what prejudice may be caused to the complainant if the personal attendance of the petitioner was dispensed with on the grounds stated as above and it appears that the learned Court below disbelieved the medical certificate produced on behalf of the petitioner in a whimsical manner without assigning any reason for that. 13. In the facts and circumstances of the case and the discussions made above, I am of the view that the learned Court below was not justified in refusing the prayer made on behalf of the petitioner to dispense with his personal appearance in the Court and having regard to the facts and circumstances of the case, the position of the petitioner who has been transferred from Chaibasa to Hoogly district in the State of West Bengal and the inconvenience likely to be caused to him in attending the Court on each and every date to the detriment of his official duty as also the condition of his health, the learned Court below ought to have allowed the prayer made by the petitioner to dispense with his personal attendance. I am, therefore, of the view that the learned Court below has not exercised the discretion vested in him under Section 205, Cr PC, in judicious manner. 14. I am, therefore, of the view that the learned Court below has not exercised the discretion vested in him under Section 205, Cr PC, in judicious manner. 14. Accordingly, the impugned order dated 25.9.98 passed by Shri V.N. Prasad, Judicial Magistrate, 1st Class, Chaibasa, in C/l case No. 3/95 is set aside and the personal attendance of the petitioner in C/l case No. 3/95 is dispensed with. 15. In the result, this revision application is allowed. 16. However, the learned Court below will be at liberty to insist the physical presence of the petitioner on such dates when personal attendance of the petitioner is essential and give necessary direction in that regard.