ORDER 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. In this case, the petitioner is challenging the order dated 3.4.2012 passed by Judicial Magistrate 1st class, Patna in Complaint Case No. 2661 (C) of 2011 by which the Court below has refused to grant the benefit of exemption from the personal appearance as provided under Section 205 of the Criminal Procedure Code (hereinafter, in short referred to as the Code). 3. In the complaint petition allegation has been made that the accused Nos. 2 and 3 approached the petitioner to open a showroom of TNG. Under the memorandum of understanding executed between the parties, the complainant gave Rs. 10,00,000/- (ten lakhs) as a security money. On the basis of giving false assurance with dishonest intention the accused obtained three cheques of Rs. 2,50,000/- (two lakhs and fifty thousand) each with the assurance that in case of necessity, the accused persons returned the cheque and made a request to the complainant to put the date so that they can adjust the amount at the time of final settlement. 4. It has been alleged that according to memorandum of understanding locking period of the same was three years and the maximum period of memorandum of understanding was nine years. 5. As per the memorandum of understanding the accused persons were required to pay Rs. 1,00,000/- every month but they have violated the terms of agreement, stopped payment. 6. The complainant approached the accused persons at Delhi for settlement of the account and terminating the MOU as the lock period was going to lapse whereupon the accused persons threatened for coercive step at the event of closing of shop by the opposite party they would not pay Rs. 1,00,000/- and all three cheques would be presented to the Bank, in the event of dishonour, threatened for lodging case. 7. It has been alleged that the accused persons committed breach of trust by giving false assurance, took the security money of Rs. 10,00,000/- including three cheques without any date and they put the date without the consent of the complainant, presented to the Bank by committing forgery of the valuable security and deposited the same with purpose of cheating, when the petitioner could know about the action taken by the opposite party, gave legal notice giving details of facts. 8. 10,00,000/- including three cheques without any date and they put the date without the consent of the complainant, presented to the Bank by committing forgery of the valuable security and deposited the same with purpose of cheating, when the petitioner could know about the action taken by the opposite party, gave legal notice giving details of facts. 8. During the pendency of the complaint petition, an application under Section 205 of the Criminal Procedure Code was filed by the petitioner claiming the petitioner being an officer of the Company, no direct allegation, claimed remain busy with the work of Company and sought exemption from personal appearance. 9. As per claim he has been holding the post of Marketing Manager at Delhi, in the complaint petition no specific allegation has been made against him of handing over the money rather the money was given to the Company. The complainant has entered into memorandum of understanding with the Company, allegation has been made for violation of terms of agreement. He has further submitted in case at hand, no serious allegation of heinous offence or allegation of moral turpitude has been alleged rather allegation are technical in nature entitled to the benefit of Section 205 of the Code, submitted as it should be liberally construed. 10. The counsel for the petitioner seriously objected the contention stating that accused persons cheated the complainant-opposite party by giving false assurance took away Rs. 10,00,000/- including did not pay rupee 1,00,000/- as per terms of agreement. Counsel of O.P. submitted, there is no need to interfere with order impugned. 11. For finding out, the parameter and grounds for granting benefit of exemption of personal appearance it will be apt to examine and consider words used by legislature in 205, Cr. P.C. which is as follows:- "Magistrate may dispense with personal attendance of accused – (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused and if necessary, enforce such attendance in the manner hereinbefore provided." 12. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused and if necessary, enforce such attendance in the manner hereinbefore provided." 12. On reading of Section 205 of the Code it appears that whenever the Magistrate issues a summons, if he sees reasons will dispense with the personal appearance of the accused and permit him to appear through a lawyer and may at any stage, in his discretion, call upon the accused for his personal attendance. The basis of granting exemption, it is the satisfaction of Magistrate based on his reasons has been considered in long line of case by this Court and Hon'ble Apex Court. 13. For coming to right conclusion and setting out parameter for exercise of discretion of Courts in granting exemption, this Court will examine, out line drawn by Courts. 14. The issue of granting exemption of personal appearance came before this Court in Ravi Singh vs. State of Bihar, 1979 BBCJ 437 , approved the view Kerala High Court in Helene Rubber Industries, Kottayam vs. State of Kerala, 1973 Cr. L.J. 262, has given parameter, where an application for 205 of the Code is flied the Court is required to see the nature of dispute and person who is claiming exemption from his personal appearance and has held that exemption should be given in all trivial and technical cases to the accused persons who are ladies, old and sickly persons, workers in factories daily wage earners, other labourers and busy business people or industrialists. Taking ratio of the case under consideration, this Court has granted benefit of exemption as provided under Section 205 of the Code and, accordingly, this Court has quashed the non-bailable warrant and the Magistrate was directed to grant exemption of personal attendance, directed to allow them to appear through lawyer. 15. This Court in Division Bench in Ram Harsh Das vs. State of Bihar, 1998 (1) East Cr. C 932 (Pat): 1998 (1) PLJR 502 , has also considered the scope and parameter of Section 205 of the Code and has construed different judgments of the Hon'ble Supreme Court on this point. The Court has held that when a petition under Section 205 of the Code is flied, the Magistrate has to exercise his discretionary power. C 932 (Pat): 1998 (1) PLJR 502 , has also considered the scope and parameter of Section 205 of the Code and has construed different judgments of the Hon'ble Supreme Court on this point. The Court has held that when a petition under Section 205 of the Code is flied, the Magistrate has to exercise his discretionary power. The Magistrate has to consider the question of dispensing with the personal appearance in a reasonable manner. No hard and fast rule can be laid for granting exemption from personal appearance. In petty cases, Court should be liberal in granting exemption but in cases of serious nature, like murder including the offence involving moral turpitude, the would will not exercise discretion my jurisdiction etc. The Court will consider the nature of the allegation the inconvenience likely to be caused to the accused and other relevant factors. The discretion of Magistrate cannot be fixed to particular while exercising the power by the Court for granting exemption. Personal exemption should be liberally extended, particularly in all trivial and technical cases to the accused persons who are ladies, old and sickly persons, workers in factories, daily wage earners, other labourers and busy business people or industrialists, if they are not facing serious charge like murder, rape, misappropriation of money, harassment to women etc. The Court refused to grant exemption for his personal appearance as the serious case was launched against him of misappropriation of public money and approved the action of the Magistrate refusing to allow exemption. 16. This Court D.K. Jhaver & other vs. State of Bihar & other, 1996 (1) BLJ 200 , has considered the scope and yardstick in granting exemption exercising power under Section 205 of the Code, how and under what circumstances, the Magistrate should exercise the power either to grant exemption or its refusal has been considered and it has been specified under what circumstances the Court should exercise power and approved the earlier view. The Court has taken the view that when a serious allegation has been made against the person concerned, in that circumstance, exemption should not be granted but in a case when the case is not of serious nature, having not alleged serious allegation mentioned above, the class of people should be allowed to be represented through lawyer and the Magistrate is required to consider the necessity of personal attendance will secure justice or will cause unnecessary inconvenience as in that case, petitioner was found to he a senior executive of the company manufacturing medicine and he was found to be moving from one place to another and it was held that no prejudice is likely to be caused to the prosecution if the prayer is allowed the benefit of exemption of personal appearance. The Court has approved the view that has been taken in Ravi Singh's case (supra). 17. The Hon'ble Supreme Court has considered the issue of granting exemption for personal appearance in the case reported in Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. 2001 (3) East Cr. C 120 (SC): (2001) 7 SCC 401 , where it held as follows:- "Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the Court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the Court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case and that a counsel on his behalf would be present in Court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. A question could legitimately be asked what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not cooperate in proceeding with the case? We may point out that the legislature has taken care of such eventualities. Section 205(2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance. The position, therefore, boils 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 on 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 authorised 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." 18. The issue of granting exemption for personal appearance has been considered by the Hon'ble Supreme Court in the case of TGN Kumar vs. State of Kerala, 2011 (1) East Cr. C 228 (SC): 2011 SC 708, where the Hon'ble Court, has held, granting exemption from personal appearance lies with the discretion of Magistrate, while considering the case, Court would keep in his mind, the nature of case and also conduct of the person summoned. C 228 (SC): 2011 SC 708, where the Hon'ble Court, has held, granting exemption from personal appearance lies with the discretion of Magistrate, while considering the case, Court would keep in his mind, the nature of case and also conduct of the person summoned. It will relevant to quote following passage from the judgment:- "The section confers a discretion on the Court to exempt an accused from personal appearance till such time his appearance is considered by the Court to be not necessary during the trial. It is manifest from a plain reading of the provision that while considering an application under Section 205 of the Code, the Magistrate has to bear in mind the nature of the case as also the conduct of the person summoned. He shall examine whether any useful purpose would be served by requiring the personal attendance of the accused or whether the progress of the trial is likely to be hampered on account of his absence. (See – S.V. Muzumdar and other vs. Gujarat State Fertilizer Co. Ltd. and another). Therefore, the satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the Magistrate, who is the master of the Court in so far as the progress of the trial is concerned and none else. If the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on 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 respectfully concur with the above guidelines and while re-affirming the same, we would add that the order of the Magistrate should be such which does not result in unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant. The Court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial. 19. The Court must ensure that the exemption from personal appearance granted to an accused is not abused to delay the trial. 19. On analysis of aforesaid judgment, it has been held by Supreme Court, the grant of exemption for personal appearance is discretionary power of the Magistrate, the test has been provided that the Court would examine, whether any useful purpose would be served by requiring personal attendance and has to strike a balance in between the interest of accused and complainant. The Hon'ble Supreme Court has set out guidelines as to how the discretion would be exercised and this Court has provided ground and grounds and class of persons to be given the benefit of exemption of personal appearance. 20. Let, the present ease be considered, as to whether present petitioner falls within the guidelines, as mentioned herein above. 21. It is well settled that the benefit of exemption of personal appearance be considered liberally and discretion should be applied on the attending facts and circumstances of the case. 22. In the present case, on reading of the complaint petition, it appears that allegation has been made that the complainant entered into a Memorandum of understanding (MOU) with accused company which manufactures readymade garment. It has been alleged, the complainant had given Rs. 10,00,000/- (ten lacs) as advance by way of security, additional three cheques each of Rs. 2,50,000/- with the condition, in case of necessity, accused persons would return the cheque or may request the complainant to put the date so that they can adjust the amount in case any dues occurred during the transaction of business. According to the terms and conditions, Rs. 1,00,000/- was to be paid every month but they have violated the terms of agreement and said that Rs. 10,00,000/- has been taken illegally. It has been stated that the showroom was running smoothly the accused person sent a letter dated 19.1.2009 saying they would not pay the Minimum Guarantee amount because the sale was poor and thereby stopped the payment. The complainant demanded the money but refused to pay. He further stated that he went to Delhi for settlement of the account as the locking period was going to expire. The accused persons threatened the complainant not to close the shop and refused to pay Minimum Guaranteed (MG) agreement amount. The complainant demanded the money but refused to pay. He further stated that he went to Delhi for settlement of the account as the locking period was going to expire. The accused persons threatened the complainant not to close the shop and refused to pay Minimum Guaranteed (MG) agreement amount. A legal notice was given with a request to return the three cheques which were handed over to him without any date. Ultimately, allegation has been made, petitioner has misappropriated Rs. 10,00,000/- and three cheques were taken surreptitiously and requested to take the cognizance. 23. From the complaint petition it appears that basically it is a dispute relating to business and the petitioner who works as a Marketing Manager, the nature of the job is to move around for the purpose of business, the Supreme Court has given broad guidelines under which the benefit of exemption from personal appearance would be granted, this Court, as above, has categorized the cases where the Court below would exercise the power liberally in case the person is ill person, pardanashin lady, labourer and businessman. No allegation has been made against the petitioner. Certainly the petitioner has to move around in course of business and it will not serve any purpose to ask him to remain present on each and every date rather would cause immense inconvenience to petitioner and loss to company. Keeping in mind the interest of the both side, this Court is of view, the Magistrate has not applied his discretion as per guidelines set out as discussion above. The order impugned is quashed and the petitioner is given the benefit of Section 205, Cr P.C. but subject to the condition that he will give an undertaking before the Court below, he would remain physically present on the date of framing of charge, at the stage of Section 313 and on the date of final judgment and also on such dates whenever the Court would deem fit and proper. 24. With this direction, this petition is allowed. Petition allowed.