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2008 DIGILAW 374 (CAL)

Amit Kumar Pugalia v. Tczpore Tea Company Limited

2008-04-07

ASHIM KUMAR ROY

body2008
Judgment :- (1) IN connection with a proceeding under section 138 of the Negotiable instruments Act relating to Case No. C-11904 of 2005, now pending before the learned Metropolitan Magistrate, 16th Court, Calcutta, the petitioner after being released on bail, on the very next day made an application under section 205 of the Code of Criminal Procedure for his exemption from personal appearance during the day-to-day proceedings of the said case. It is the case of the petitioner that he is a permanent resident of Delhi and if he is required to be present on each day of hearing of the matter the same shall cause tremendous hardship to him. However, the learned Magistrate refused to consider his such prayer and directed that the same shall be considered in his presence. Hence, this Criminal Revision. (2) HEARD the learned Advocate, appearing on behalf of the petitioner as well as the learned Advocate, appearing on behalf of the opposite party. (3) HAVING gone through the impugned order, I am unable to sustain the same. It is the settled position that in a summons case, the Court can even exempt the personal appearance of the accused without the accused being present in Court for any time. In the instant case the petitioner has appeared in Court and obtained bail, as such, the order passed by the learned magistrate insisting the petitioner to be present for the purpose of consideration of his application under section 205 of the Code of Criminal procedure is not at all justified and is illegal. Accordingly, the said order so far as that relates to a direction against the petitioner for being present in court on the day fixed for hearing of his application under section 205 of the code of Criminal Procedure is set aside. The learned Magistrate is directed to dispose of the said application in accordance with law, without insisting the petitioner to be personally present in Court. (4) I make it clear that the said application shall be taken into consideration if the accused person gives an undertaking of not challenging his identity as the particular accused and his Counsel shall represent him on each day of hearing of the Trial and he shall not raise any question of prejudice if the evidence is recorded in his absence. The learned Magistrate is directed to immediately dispose of this application under section 205 of the Code of Criminal Procedure, preferably within a week from the date of communication of this Order in the light of the observations made hereinabove and after giving reasonable opportunity of hearing to both the parties. (5) THIS criminal rcvisional application is, thus, disposed of. (6) IT appears that the complaint in connection with the above noted case was filed on December 2005. Therefore, the learned Magistrate is directed to proceed in this matter strictly in terms of the mandate contained under section 143 (3) of the Negotiable Instruments Act. (7) IN view of the disposal of the main criminal revisional application, the application for extension of the interim Order being CRAN No. 669 of 2008 also stands disposed of accordingly. Appeal disposed of.