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2008 DIGILAW 482 (AP)

Chityala Venkata Reddy v. State of A. P.

2008-07-10

P.SWAROOP REDDY

body2008
Order: This Criminal Petition under Section 482 Cr.P.C. is filed by the petitioner - de facto complainant seeking to quash the order dated 18-02-2008 passed by the learned Judicial Magistrate of First Class, Narsampet, Warangal District in Criminal M.P. No.755 of 2007 in C.C. No.96 of 2004 and consequently direct respondent Nos.3 and 4 - accused Nos.2 and 3 to appear before the trial Court on the next date of hearing. 2. The main grievance of the de facto complainant is that accused Nos.2 and 3 are not appearing before the trial Court. 3. Trial Court issued summons to accused Nos.2 and 3, but they did not attend. Then issued non-bailable warrants, which were also not executed. On that, petitioner filed Criminal M.P. No.672 of 2007 for appointment of Advocate Commissioner for execution of NBWs. At that stage, accused Nos.2 and 3 filed Criminal M.P. No.755 of 2007 without appearing in person and sought to recall of NBWs and requested to dispense with their personal attendance on health grounds. 4. Learned Magistrate without insisting for their personal appearance allowed the petition dispensing with the personal appearance of accused Nos.2 and 3 and recalled NBWs, which is challenged in this petition. 5. The petition filed by accused Nos.2 and 3 was allowed by the learned Magistrate vide impugned order. 6. Now the petitioner contends that accused Nos.2 and 3 failed to appear on summons and managed to see that NBWs are not executed and when an Advocate Commissioner was sought for execution of NBWs by the complainant, accused filed the impugned petition and the learned Magistrate was not at all justified in ordering the same. 7. Learned counsel for the accused contends that it was a discretionary order passed by the learned Magistrate and the Apex Court in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. & others1 held that there is nothing wrong in recalling such NBWs and allowing the accused to be represented by their counsel. 8. Now the point for consideration is whether there are any grounds for allowing the petition? 9. No doubt, the order impugned passed by the learned Magistrate is somewhat discretionary, but the question is 'in all kinds of cases can such discretion be used'. 10. The nature of the case and conduct of the accused are also to be taken into consideration while passing such orders. 9. No doubt, the order impugned passed by the learned Magistrate is somewhat discretionary, but the question is 'in all kinds of cases can such discretion be used'. 10. The nature of the case and conduct of the accused are also to be taken into consideration while passing such orders. It is a case arising out of a chit fund transaction. The complainant, who contributed to the chit fund, when wanted to draw his own amount, cheques issued towards payment of the same by the accused were dishnoured. Thus, the complainant was cheated. When summons were issued, in spite of receiving summons, accused failed to appear and when NBWs were issued those were also not executed. Only when the complainant wanted the NBWs to be executed through Advocate Commissioner, accused appeared through their counsel and filed petition to dispense with their presence. In such kind of circumstances, there was absolutely no justification for the learned Magistrate to allow the petition even without initial appearance of the accused. This kind of practice of encouraging persons involved in unfair activities is not desirable. It is not a case of simple dishonour of cheque. 11. In paragraph 15 of the decision referred supra, the Apex Court held: "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 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 a 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." 12. As revealed from paragraph-3 of the judgment, A-1 was a company having its registered office at Bhiwani in Haryana; A-2 was its Managing Director and the remaining accused were said to be the persons associated with A-1. They were all living at far away distance from Bhopal; some persons were in Chandigarh and some others were in Delhi. As revealed from paragraph-3 of the judgment, A-1 was a company having its registered office at Bhiwani in Haryana; A-2 was its Managing Director and the remaining accused were said to be the persons associated with A-1. They were all living at far away distance from Bhopal; some persons were in Chandigarh and some others were in Delhi. Paragraph-12 of the Judgment refers that the offence under Negotiable Instruments Act is relatively not a serious offence; the insistence on the physical presence of the accused in the case would cause substantial hardship and sufferings to the accused, in that particular case, as he was a resident of Haryana. 13. In the present case, no such circumstances exist. The accused are residents of a place which is about 100 - 120 Kilometers away, from the place where the complaint is filed. They are all residents of Hyderabad and it is not a simple case under section 138 of the Negotiable Instruments Act. It is almost a case of cheating. Further, the accused, in fact, harassed the complainant, even after filing the complaint, by not appearing on summons; by not attending even while NBWs were issued and only made appearance through their counsel after a petition was filed to execute the NBWS by appointing Advocate-Commissioner. 14. Further in paragraph 17 of the judgment, Apex Court observed that in appropriate cases, Magistrate can allow an accused to make even the first appearance through a counsel. The question is what is an appropriate case. Like in the decision referred supra, it is not a case where the accused have to travel long distances and the conduct of the accused in not making appearance even through the counsel immediately after serving summons and then ultimately filing a petition to dispense with the presence after causing substantial inconvenience and harassment to the complainant is questionable and in such kind of cases, accused shall not be encouraged at all. 15. In these circumstances, the impugned order dated 18-02-2008 passed by the learned Judicial Magistrate of First Class, Narsampet, in Criminal M.P. No.755 of 2007 in C.C. No.96 of 2004 is set aside and it is directed that accused Nos.2 and 3 must appear before the Court below on the next date of hearing and execute appropriate bonds, if not already executed. 16. 16. With regard to appearance of the accused during trial, it is left to the discretion of the learned Magistrate, which, it is hoped, would be used appropriately. However, they must invariably appear at the time of framing of charges - their examination under section 251 Cr.P.C., and under Section 313 Cr.P.C. and on the date of pronouncement of judgment. Accordingly, the Criminal Petition is ordered. 17. I feel it desirable to make an observation with regard to presence of the complainant in certain cases especially arising under Section 138 of Negotiable Instruments Act. In these cases instituted under section 200 Cr.P.C., if the complainant is absent, complaint would be dismissed. When the presence of the accused is dispensed with and they are permitted to be represented through their counsel, expecting presence of the complainant on each day of adjournment would be nothing but inconveniencing and harassing him, as the accused enjoys a holiday and the complainant, who is supposed to be the victim in the hands of the accused, has to invariably attend the Court and wait. Therefore, in cases arising out of Section 138 of the Negotiable Instruments Act, where presence of any of the accused is dispensed with during trial, presence of the complainant also has to be dispensed with liberally and his complaint shall not be dismissed for want of his presence.