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2016 DIGILAW 617 (ORI)

Pritimaya Giri v. Satish Kumar Agarwalla

2016-08-09

S.K.SAHOO

body2016
JUDGMENT : S.K. SAHOO, J. This is an application under section 482 Cr.P.C. filed by the petitioner Pritimaya Giri challenging the order dated 8.1.2003 passed by the learned S.D.J.M., Balasore in Crl. Trl. (I.C.C.) No.333 of 2002 in taking cognizance of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereafter ‘N.I. Act’). 2. The prosecution case, as per the complaint petition lodged by the opposite party is that the complainant is the power of attorney holder of Mrs. Nisha Agarwal, who is the proprietor of M/s. Pankaj Sales which deals with cement business. The petitioner purchased cement of worth Rs.34,700/- from the complainant on credit. The petitioner issued a cheque of Rs.12,000/- bearing no.103800 dated 20.04.2002 and requested the complainant to produce the cheque at least two months after its issuance. On 09.08.2002 the complainant presented the cheque before Manager, UCO Bank, Ganeswarpur Branch which was bounced for the reason “funds insufficient”. The complainant issued notice on 10.08.2002 to the petitioner as required under section 138 of the N.I. Act for payment of the cheque amount which was received by the petitioner on 12.08.2002. The petitioner replied to pay a part of the cheque amount within a short period but did not pay any amount and accordingly, the complaint petition was filed on 16.09.2002. 3. The learned Magistrate on perusal of the complaint petition and sworn testimony of the complainant, found sufficient ground to proceed against the petitioner and accordingly, took cognizance of offence punishable under section 138 of the N.I. Act. 4. Learned counsel for the petitioner while challenging the impugned order strenuously urged that the date of the cheque has been interpolated from 20.04.2000 to 20.04.2002 and though the petitioner issued a cheque on 20.04.2000 but it was presented by the opp. party no.1 on 09.08.2002 with the bank which was beyond the validity period of cheque by manipulating the date of the cheque. It is further contended that the petitioner has repaid the credit amount to the complainant by cash. Learned counsel for the petitioner further contended that the proceedings under section 138 of the N.I. Act is totally misconceived and therefore, the order of cognizance suffers from non-application of mind and accordingly, the same should be quashed. 5. It is further contended that the petitioner has repaid the credit amount to the complainant by cash. Learned counsel for the petitioner further contended that the proceedings under section 138 of the N.I. Act is totally misconceived and therefore, the order of cognizance suffers from non-application of mind and accordingly, the same should be quashed. 5. The grounds which are taken by the learned counsel for the petitioner challenging the order of cognizance require appreciation of evidence at the stage of trial which can be done only after confrontation of the necessary documents to the complainant to afford an opportunity to have his say, verification of books of accounts and proof of repayment of cheque amount by the petitioner to the complainant by cash. After hearing both the sides, the learned Trial Court can effectively deal with the contentions raised by the respective parties and adjudicate the issue but at this stage, when the facts are controverted, I am of the view that the impugned order dated 08.01.2003 cannot be quashed by invoking inherent power under section 482 Cr.P.C. 6. It appears that vide order dated 16.09.2004, the prayer made by the petitioner under section 205 Cr.P.C. for dispensing with his personal appearance has been rejected. Section 205 Cr.P.C. deals with the power of a Magistrate to dispense with the personal attendance of accused. If at the time of issuance of summons under section 204 Cr.P.C., the Magistrate thinks that the personal attendance of the accused is not necessary, he may dispense with such personal attendance and permit him to appear by his pleader. The power under section 205 Cr.P.C. has to be exercised in regard to the circumstances of the case, condition of the accused, the necessity for his personal attendance etc. Even no formal petition to that effect is necessary. At the threshold, at the time of issuance of summons, the Magistrate can on his own dispense with the personal attendance of the accused. Section 205(2) Cr.P.C. empowers the Magistrate who is either inquiring into or trying the case to direct the accused whose personal appearance has been dispensed with to appear before him at any stage of the proceeding and the Magistrate can also enforce the attendance of the accused if necessity arises. Section 205(2) Cr.P.C. empowers the Magistrate who is either inquiring into or trying the case to direct the accused whose personal appearance has been dispensed with to appear before him at any stage of the proceeding and the Magistrate can also enforce the attendance of the accused if necessity arises. The learned Magistrate while rejecting the application under section 205 Cr.P.C. held that the petitioner is staying inside the Balasore Town and he can very well appear in the Court and in case contingency arises, the other provisions of Cr.P.C. can be extended to him. In case of M/s. Bhaskar Industries Ltd. Vrs. M/s. Bhiwani Denim reported in (2001) 21 Orissa Criminal Reports (SC) 452, it is held as follows:- “15. 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 the 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 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. 16. Section 251 is the commencing provision in Chapter XX of the Code which deals with trial of summons cases by Magistrates. It enjoins on the court to ask the accused whether he pleads guilty when the "accused appears or is brought before the Magistrate". The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205 (1) of the Code which says that "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." 17. Thus, in appropriate cases, the Magistrate can allow an accused to make even the first appearance through a counsel. 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. 18. 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 co-operate in proceeding with the case? We may point out that the legislature has taken care for such eventualities. Section 205(2) says that he Magistrate cane 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. 19. The position, therefore, bogs 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 to 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.” In case of Debasis Samantaray Vrs. State of Orissa reported in (2003) 25 Orissa Criminal Reports 594, it is held as follows:- “8….The offence alleged in this case is under Section 138 N. I. Act, the cheque issued by the petitioner in favour of opposite party No. 2 having been dishonoured or bounced by the Bank. The case, as it appears, mostly depends on documentary evidence. As such, appearance of the accused petitioner on each date to which the case stands posted need not be insisted upon by the Magistrate. But then if, according to the Magistrate, during the trial presence of the accused becomes necessary, he is loathed with power under Sub-section (2) of Section 205 Cr. P. C. to direct his attendance in Court. In other words, for effectual trial, if the presence of the accused alleged to have committed the offence under Section 138, N. I. Act becomes necessary, it will be open to the Court below to insist on his personal attendance in Court.” In case of M/s. Annapurna Machinery Vrs. Gayatri Parida reported in (2008) 40 Orissa Criminal Reports 56, it is held as follows:- “4. The personal attendance of an accused should not be insisted upon unless it is absolutely necessary in the proceeding. In the instant case, the offence alleged against the petitioner being one under Section 138 of the N.I. Act, the same is distinctly separate from offences under the other Acts and a case under Section 138 of the N.I. Act can be effectually adjudicated even in the absence of the accused persons on the basis of documents available. In the instant case, the offence alleged against the petitioner being one under Section 138 of the N.I. Act, the same is distinctly separate from offences under the other Acts and a case under Section 138 of the N.I. Act can be effectually adjudicated even in the absence of the accused persons on the basis of documents available. This subtle difference has to be kept in mind by the Magistrate while deciding an application under Section 205 Cr.P.C.” In case of Pramod Kumar Rath Vrs. M/s. Aditya Steel Industries Ltd. reported in (2007) 37 Orissa Criminal Reports 754, it is held as follows:- “8….However as has been held by this Court in several cases, complaint case alleging commission of offence under Section 138 of the Act can be disposed of mostly on the basis of documents and other evidence. In such a case, presence of the accused on all dates is not necessary and the Court should only insist on presence of the accused on the dates on which appearance of the accused in Court is necessary for effectual adjudication….” In case of Durowelds Private Ltd. Vrs. Tata Iron reported in (2002) 23 Orissa Criminal Reports 846, it is held as follows:- “9…..The offence alleged is under section 138 of the Negotiable Instruments Act…..The case as it appears mostly depends on documentary evidence in as much as whenever the learned Magistrate during the trial feels the necessity of presence of the petitioners, he is clothed with the power under sub-section (2) of Section 205 Cr.P.C. to direct their attendance.” In view of the aforesaid decisions, the ground of rejection of the application under section 205 Cr.P.C. filed by the petitioner is not proper and justified and therefore, the same is liable to be set aside. The learned Magistrate shall dispense with the personal appearance of the petitioner on giving an undertaking by him to the satisfaction of the Magistrate that the counsel on his behalf would be present in Court throughout the proceeding and that the petitioner shall have no objection in taking evidence in his absence and further that he would attend the Court as and when his personal attendance is required by the Court. Accordingly, the CRLMC is disposed of.