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2004 DIGILAW 1628 (ALL)

DANIM LEATHER LTD v. STATE

2004-08-23

S.P.MEHROTRA

body2004
S. P. MEHROTRA, J. Pursuant to the order dated 26th July, 2004, the case is listed today. 2. Sanjay Mahajan (Opposite Party No. 2), Ashok Mahajan (Opposite Party No. 3), Ajay Mahajan (Opposite Party No. 4), Mrs. Juhi Mahajan (Opposite Party No. 5) and Mrs. Alka Mahajan (Opposite Party No. 6) are personally present in the Court today. They are identified by Sri L. K. Pandey, learned counsel for opposite parties Nos. 2 to 6 in Civil Misc. Application No. 219251 of 2002, under Section 454 (5) of the Companies Act, 1956. 3. An application dated 23rd August, 2004 has been filed today before the Court on behalf of the opposite parties Nos. 2 to 6. Registry is directed to give appropriate number to the said application. 4. It is, inter-alia, prayed in the said application that the personal appearance of the opposite parties Nos. 2 to 6 be exempted, and the opposite parties Nos. 2 to 6 be permitted to appear through their counsel. 5. The said application is supported by an affidavit of Sanjay Mahajan (Opposite Party No. 2) sworn on 23rd August, 2004. 6. It is submitted by Sri L. K. Pandey, learned counsel for the opposite parties Nos. 2 to 6 that in view of the circumstances mentioned in the said application dated 23rd August, 2004 and its supporting affidavit, particularly in view of the enormous hardship and the cost involved in coming to Allahabad, personal presence of the opposite parties Nos. 2 to 6 be exempted. He has placed reliance on the decision of the Supreme Court in M/s Bhaskar Industries Ltd. v. M/s Bhiwani Denim & Apparels Ltd. & others, J. T. 2001 (7) S C 127. 7. Sri L. K. Pandey, learned counsel for the opposite parties Nos. 2 to 6 further undertakes that the statement of affairs of the Company (in liquidation) will be filed on or before the next date fixed in the case. 8. I have considered the submissions made by Sri L. K. Pandey, learned counsel for the opposite parties Nos. 2 to 6, and perused the record. 9. In M/s Bhaskar Industries Ltd. case (supra), their Lordships of the Supreme Court laid down as under (paragraphs 14, 15 and 19 of the said Judgment Today): " (14) The normal rule is that the evidence shall be taken in the presence of the accused. 2 to 6, and perused the record. 9. In M/s Bhaskar Industries Ltd. case (supra), their Lordships of the Supreme Court laid down as under (paragraphs 14, 15 and 19 of the said Judgment Today): " (14) The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his Counsel must be present in the Court, provided he has been grunted exemption from attending the Court. The concern of the criminal Court should primarily be the administration of criminal justice. For that purpose the proceedings of the Court in the case should register progress. Presence of the accused in the Court is not for marking his attendance just for the sake of seeing him in the Court. It is to enable the Court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the Court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear within order to make himself present in the Court in that particular case. (15) These are days when prosecutions for the offence under Section 138 are galloping up in criminal Courts. Due to the increase of 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 prosecution under Section 138 of the NI Act the trial should be that 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 causing prejudice to the prosecution proceedings. 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 causing prejudice to the prosecution proceedings. (19) The position, therefore, bogs down to this It is within the powers of a Magistrate and 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 Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only 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 Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to 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 Magistrate through his duly authorized Counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further. " 10. From the aforesaid decision of the Supreme Court, it is evident that there is judicial discretion with the Court to dispense with the personal appearance of an accused. However, such discretion is to be exercised in rare instances where enormous hardship suffering tribulations and cost would be inflicted upon a particular accused if his personal presence is insisted upon while the comparative advantage would be less. 11. In paragraph 15 of the said judgment, their Lordships specifically referred to the cases where the accused would be ladies also. 12. Having regard to the propositions laid down in the aforesaid decision of the Supreme Court in M/s Bhaskar Industries Ltd. (supra) and having regard to the facts and circumstances of the present case, and in particular, having regard to the fact that the statement of affairs of the Company (in liquidation) has not as yet been filed by the opposite parties Nos. 2 to 6, I am of the opinion that while the personal presence of Mrs. Juhi Mahajan (Opposite Party No. 5) and Mrs. Alka Mahajan (Opposite Party No. 6) may be exempted until further orders of this Court, the personal presence of the remaining opposite parties, namely, Opposite Party No. 2 (Sanjay Mahajan), Opposite Party No. 3 (Ashok Mahajan) and Opposite Party No. 4 (Ajay Mahajan) may not be exempted at present. 13. Accordingly, it is directed that the personal presence of Mrs. Juhi Mahajan (Opposite Party No. 5) and Mrs. Alka Mahajan (Opposite Party No. 6) will remain exempted until further orders of this Court. However, Sanjay Mahajan (Opposite Party No. 2), Ashok Mahajan (Opposite Party No. 3) and Ajay Mahajan (Opposite Party No. 4) will personally appear before the Court on the next date fixed in the case. The case will now be listed on 4th October, 2004. This order will not be treated as having extended time for filing of the statement of affairs as per the provisions of Section 454 of the Companies Act, 1956. Decded accordingly. .