Orissa High Court
Durowelds Private Limited And Ors. vs The Tata Iron & Steel Company Ltd. ... on 17 September, 2002
Author: P.K. Mohanty
Bench: P.K. Mohanty
JUDGMENT P.K. Mohanty, J.
1. In all these Criminal Revisions common question of fact and law being involved and parties more or less being the same, on the prayer and on agreement of the learned counsel for the parties, they are taken up together and disposed of by this common order.
2. Petitioner No. 1 is Durowelds Private Limited, a Company registered under the Companies Act, 1956 represented by its Managing Director, Petitioner No. 2 and Director petitioner No. 3. These Criminal Revisions arise out of I.C.C. Case No. 190 of 2001, 320 of 2001, 378 of 2001, 487 of 2001, 486 of 2001, 184 of 2002, 638 of 2001, 639 of 2001, 739 of 2001 and 46 of 2002 respectively.
3. The brief fact of the case is that the petitioners are the accused persons in the complaint filed against them by M/s. Tata Iron and Steel Company Ltd. under Section 138 of the Negotiable Instruments Act, the cheques issued by them having bounced due to inadequate funds. The petitioners filed an application under Section 205 of the Code of Criminal Procedure for dispensing with their personal attendance and to be represented by their lawyers in the Criminal proceeding. The learned S.D.J.M., Bhubaneswar having rejected their applications under Section 205, Cr.P.C. they have approached this Court.
4. The contention of the learned counsel for the petitioners is that since the offence is not of a serious nature and the petitioners being the Company and its Directors, learned Magistrate should not have insisted upon their personal appearance and should have exercised its jurisdiction vested in it under Section 205, Cr.P.C. It is further submitted that the grounds taken in the applications being that the petitioners 2 and 3 are old and ailing persons and they are unable to take long distance travel, the learned Magistrate ought to have taken a liberal view and exercised his jurisdiction in favour of the accused persons.
5. The learned Magistrate rejected the applications under Section 205, Cr.P.C. mainly on the ground that the accused persons are business men and they are meant to travel different places for the purpose of their business and as such, their movement to the Court would not affect them in any way physically. The learned Magistrate refused to extend his discretion in allowing representation.
6. The criminal proceeding is initiated at the instance of the opp. party-Company having filed a complaint petition alleging commission of offence under Section 138 of the Negotiable Instruments Act. An application was filed by the accused-petitioners for dispensing with their attendance in the Court. Section 205 of the Code of Criminal Procedure is quoted hereunder for ready reference ;
"205. 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."
7. The law is well settled that it is within the province of the Magistrate and in his judicial discretion to dispense with the personal attendance of an accused either throughout or at a particular stage of the criminal proceeding in a summons case if the Magistrate finds that insistance of personal appearance would cause serious difficulties and inconvenience to him and the comparative advantage would not overweigh non-appearance.
8. The discretion of the Magistrate under Sub-section (1) of Section 205 of the Cr.P.C., however, should be exercised only where an accused due to his physical disability and or because of distance at which he ordinarily resides or carrying on business and his appearance on each date would cause great hardship or for any other good and cogent reasons. However, where the Magistrate feels that the personal attendance in the attending circumstances should be dispensed with alleged in the interest of justice he has to take precaution in such a situation by asking and obtaining from the accused an undertaking to his satisfaction that the counsel in his behalf would be present in the court throughout the proceeding and that the accused has no objection in taking evidence in his absence.
9. In the case at hand it appears that the petitioners made an application under Section 205(1), Cr.P.C. for dispensing with their attendance on the ground that petitioner No. 2 is an old man aged 65 years, ailing and under treatment for hypertension, diabetic and other old age ailments and is required to cover a long distance from Rourkela to attend the Court at Bhubaneswar. Petitioner No. 3, however, took the ground of distance and pre-occupation in business and the hardship he would face in attending the Court. The grounds pleaded by the accused petitioners, appears not to have found favour of the learned Magistrate since in his opinion they being business men are required to and would be travelling to various places in connection with their business and, therefore, appearance in Court would not cause hardship. The observation of the learned Magistrate appears not to have based on any materials whatsoever, rather based on surmises. If any material was available with the learned Magistrate that the petitioners are in fact undertaking journeys in connection with their business to different places, certainly in that case, he would have been justified in rejecting their applications. But nothing appears to have been on record to that effect. The offence alleged is under Section 138 of the Negotiable Instruments Act, the cheque issued by the petitioner-Company having been dishonoured and bounced for insufficient fund and non-payment thereof. The case is, it appears mostly depends on documentary evidence inasmuch as whenever the learned Magistrate during the trial feels the necessity of presence of the petitioners he is loathed with the power under Sub-section (2) of Section 205, Cr.P.C. to direct their attendance.
10. In such view of the matter, I set aside the orders of the learned S.D.J.M. rejecting the petitioners' applications for dispensing with their personal attendance and direct the learned Magistrate to consider and allow the applications under Section 205, Cr.P.C, to dispense with personal appearance on the petitioners giving an undertaking to his satisfaction that the counsel in their behalf would be present in Court throughout the proceeding and that the accused has no objection in taking evidence in their absence and further that they would attend the Court as and when their personal attendance is required by the Court. The learned counsel for the parties undertake that their parties shall co-operate in early trial. Let the trial be taken up expeditiously and completed within a period of four months hence as agreed to by the learned counsel for the parties.
The Criminal Revisions are disposed of accordingly.