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2006 DIGILAW 1114 (PAT)

Pramod Bhashin v. State Of Bihar

2006-11-23

ABHIJIT SINHA

body2006
Judgment 1. Heard Sri N.K. Agrawal, learned Senior counsel appearing for the petitioner, and the learned A.P.P. for the State. 2. Aggrieved by order dated 9.6.2006 passed by Sri B. Tiwari, J.M. 1st Class, Patna in Complaint Case No. 290(C) of 2004 whereby his prayer for exemption under Section 205 of Cr.P.C. has been rejected the petitioner has challenged the validity and correctness of the said order. 3. The petitioner has been made an accused in this case on the basis of a complaint filed by opposite party no. 2, namely, M/s Ganga Scan and Research Centre, for alleged offences punishable under Sections 420, 409, 463, 468, 471 read with 120B of the Indian Penal Code but cognizance was taken for the offences punishable under Sections 406, 420, 468, 471 and 120B of the I.P.C. The petitioner was said to be the Chief Executive Officer of M/s G.E. Capital Services India Ltd., at that point of time, i.e., at the time of the alleged offence but at present he is President and the Chief Executive Officer of G.E. Capital International Services with his Office at Gurgaon in Haryana. It is said that G.E. Capital Services India Ltd, had entered into an Equipment Loan and Security Agreement (hereinafter referred to as "agreement" with M/s Ganga Scan and Research Centre, Patna and a loan of Rs. 64 lacs was advanced for financing a C.T. Scan for whole Body Scan. The loan amount with interest was to be repaid by M/s Ganga Scan and Research Centre to GECSI Ltd. in monthly instalment and as per the terms and conditions of the agreement. As per Clause 1(C) of the agreement entered into between the two parties it was clearly stipulated that any taxes payable were not a part of the monthly instalments fixed, and as such it was agreed and understood that no TDS was to be deducted on the instalments and in the event any TDS was to be deducted, it was agreed that the instalment amount would be increased by a corresponding amount so that the net amount payable to GECSI by M/s Ganga Scans remained the same. Then followed notice under Section 194-A of the I.T. Act which shifted the liability of payment of TDS on the head of GECSI Ltd., instead of M/s Ganga Scan and Research Centre. Then followed notice under Section 194-A of the I.T. Act which shifted the liability of payment of TDS on the head of GECSI Ltd., instead of M/s Ganga Scan and Research Centre. It was the stand of M/s Ganga Scan and Research Centre that they were told by the accused persons that no TDS shall be payable by the complainant because the accused Company had been granted exemption and in spite thereof the complainant had to pay Rs. 12 lacs towards T.D.S. and hence the complainant petition as the complainant Company felt that it was due to negligence of M/s G.E. Capital Services India Ltd. when they had to pay the amount. 4. It has been submitted on behalf of the petitioner that no offence under Section 406 of the I.P.C. could be said to have been made out against the petitioner as no amount was paid by the complainant to the accused and the complainant had failed to show that there had been no case of wrongful loss caused to them for wrongful gain to the petitioner company. It has also been submitted that the petitioner being the President and Chief Executive Officer of the Succeeding company and residing at Gurgaon it would be a matter of great hardship if he was required to be present in court at Patna on all dates. The petitioner has also undertaken that they will not dispute their identity and shall be represented by the lawyer on every date. 5. However, the submissions on behalf of the petitioner did not find favour with the court in seisin of the case who rejected the prayer for dispensing with the personal appearance under Section 205 of the Cr.P.C. as it was of the opinion that the petitioner was neither a person who was unable to move being physically handicapped nor the offences he was charged with were grievous in nature. 6. The law is very clear on the issue and reference can be made to the case of S.V. Muzumdar and Ors. vs. Gujarat State Fertilizer Co. 6. The law is very clear on the issue and reference can be made to the case of S.V. Muzumdar and Ors. vs. Gujarat State Fertilizer Co. Ltd. and Another reported in 2005(4) SCC 173 where it has been held as under: "It has to be borne in mind that while dealing with an application in terms of Section 205 of the Code, the court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of his absence. We make it clear that if at any stage the trial court comes to the conclusion that the accused persons are trying to delay in completion of trial, it shall be free to refuse the prayer of dispensing with personal attendance." 7. I am satisfied that in the instant case the personal presence of the petitioner on each and every date fixed was not an imperative in absence whereof the progress of the trial would be hindered. The trial court was required to see this aspect of the matter which it failed to do. I am of the view that this is a fit case for allowing the prayer. 8. As such the application filed on behalf of the petitioner under Section 205 of Cr.P.C. is allowed and his personal appearance is dispensed with subject to the presence of the petitioner as and when required by the court in accordance with law. 9. With the aforesaid observation this application stands allowed.