Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 806 (RAJ)

Sudip B. Dutta v. State of Rajasthan

2013-04-26

ATUL KUMAR JAIN

body2013
Hon'ble JAIN, J.—Cognizance against the petitioner accused Sudip B. Dutta was taken under Section 138 of the N.I. Act, 1881 by the learned Judicial Magistrate, First Class, Barr District Pali by order dated 4.10.2007 in Criminal Case No. 534/2007 P.G. Foils Limited vs. M/s. Sushmit Packaging & Ors. The order dated 4.10.2007 of the lower court was challenged by the accused-petitioner Sudip B. Dutta but his petition under Section 482, Cr.P.C. in this regard was dismissed on 22.9.2011 by a Co-ordinate Bench of this Court. Copy of the order dated 22.9.2011 which was passed in S.B. Cr. Misc. Petition No. 1371/2008 has been filed by the parties in this case. 2. When the petitioner was not able to get the proceedings of the lower court quashed, then he has filed another petition under Section 482, Cr.P.C. before this Court and this time he has challenged the order dated 12.1.2012 passed by the learned Judicial Magistrate, Barr in the same case whereby the learned lower court has refused to grant exemption from personal appearance to accused-petitioner Sudip B. Dutta at the stage of substance of accusation. 3. It is pertinent to note here that the accused-petitioner Sudip B. Dutta has perhaps not submitted bail bonds also in the lower Court for his personal appearance. He has argued that bail bonds for personal appearance in a case under Section 138 of the N.I. Act, 1881 are not necessary to be taken by the lower court because at the stage of charge as well as at the state of Section 313, Cr.P.C., the accused may give his appearance through his Advocate. 4. I have heard both the parties on the point in issue. Following rulings have been submitted by the accused-petitioner:- (1) Gajanand Goyal and others vs. Asiya Begum (2005) 12 SCC 331. In this case, it was held that the trial court may dispense with the personal attendance of the accused in a case under Section 138 of the N.I. Act, 1881 but if any attempt was made to prolong the proceeding by taking advantage of exemption then the trial court will be free to pass necessary coercive orders. (2) Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. and others (2001) 7 SCC 401 . (2) Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. and others (2001) 7 SCC 401 . In this case, Hon'ble the Supreme Court has held that discretion to dispense with the personal attendance of the accused should be exercised in rare cases where due to a distance or any physical disability or any other good reason or in the interests of justice, the accused is unable to attend to court personally. It was also held that when counsel of the accused-petitioner does not appear or co-operate then personal attendance of the accused may be made compulsory. In this case, it was also held that if attendance of accused is dispensed with then the Magistrate can record plea of the accused through Advocate also. (3) Mangaroo vs. The State of U.P., 1992 Cri. L.J. 1397. In this case, Hon'ble Allahabad High Court has held that in less serious criminal cases, exemption may be granted to accused from personal appearance. (4) Dhiria and others vs. Jainarain and another, AIR 1970 Raj. 102 . In this case also, liberal exemption from personal appearance of accu-sed in less serious criminal case was advised for subordinate courts. 5. I have perused the rulings cited by the accused-petitioner. 6. It was alleged in the complaint under Section 138, N.I. Act, 1881 that two cheques of Rs. 10,00,000/- (Rs. Ten lacs) given by the accused-petitioner to the complainant were dishonoured and now the accused-petitioner does not want to come even for once in the trial court. The distance from Bombay to Pali is not so much that one cannot come once or twice in the court. When the accused-petitioner can file various petitions in the High Court at Jodhpur again and again, he should not hesitate to give his personal appearance before the subordinate court also. 7. In the circumstances of the case, it is hereby ordered that if accused-petitioner Sudip B. Dutta submits the bail bonds as may be ordered by the trial court for his personal appearance for each date of hearing, then he may be granted exemption from personal appearance for routine dates but at the stage of substance of accusation, at the stage of statement under Section 313, Cr.P.C. and as well at the stage of judgment, he will have to appear personally before the trial court. 8. The Criminal Misc. Petition of the accused-petitioner Sudip B. Dutta is disposed of accordingly. 8. The Criminal Misc. Petition of the accused-petitioner Sudip B. Dutta is disposed of accordingly. The stay petition also stands disposed of accordingly.