Kerala High Court
Perinthalmanna vs M/S.Bhiwani on 6 March, 2008
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
FRIDAY, THE 14TH DAY OF JUNE 2013/24TH JYAISHTA 1935
Crl.MC.No. 2225 of 2013 ()
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AGAINST THE PROCEEDINGS IN ST 512/2009 of J.M.F.C.-II,
PERINTHALMANNA
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PETITIONERS/ACCUSED NO.6.
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MR.ANAND PRAKASH SANGHI, AGED ABOUT 70 YEARS
S/O. LATE SRI. RAM SHARAN SANGHI
M/S. SANGHI THREADS PVT., 4-3-352, BANK STREET
HYDERABAD-095.
BY ADV. SRI.BABU S. NAIR
RESPONDENTS/STATE AND COMPLAINANT:
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1. THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.
2. MR. GEORGE JACOB IS THE PROPRIETOR OF
M/S. WAYANAD RESINS
PUNNAPALA P.O., ERIYAD, WANDOOR
MALAPPURAM DISTRICT-676314.
BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN
THIS CRIMINALMISC. CASE HAVING COME UPFOR ADMISSION
ON 05.06.2013, ALONG WITH CRL.MC NO.2225/2013 AND CONNECTED CASES,
THE COURT ON 14.06.2013 PASSED THE FOLLOWING:
VK
Crl.MC.No. 2225 of 2013 ()
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APPENDIX
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PETITIONER(S)' EXHIBITS
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ANNEXURE A- TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT
BEFORE THE LEARNED J.F.C.M. II, PERINTHALMANNA IN S.T.NO. 512/2009
DATED 6.3.2008.
ANNEXURE B- TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED TO THE
PETITIONER FROM THE OMEGA HOSPITAL, HYDERABAD DATED 24-5-2013.
ANNEXURE C- TRUE COPY OF THE PROCLAMATION NOTICE ISSUED FROM THE
J.F.C.M-II, PERINTHALMANNA DATED 26-3-2013.
RESPONDENT(S)' EXHIBITS : NIL
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/ TRUE COPY /
P.A. TO JUDGE
VK
V.K.MOHANAN, J.
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Crl.M.C.Nos.2225, 2226, 2227, 2228,
2229, 2230, 2231, 2232, 2233, 2234,
2235, 2236, 2237 and 2238 of 2013
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Dated this the 14th day of June, 2013.
O R D E R
The petitioner is the 6th accused in all the above summary trial cases, covered by the above Crl.M.Cs. filed under section 482 of Cr.P.C., which are instituted upon the private complaints preferred by the 2nd respondent, who is the complainant in all the above cases, alleging offences punishable under section 138 of the NI Act against the accused including the petitioner herein. The prayer of the petitioner in the above petitions is to direct the court below to accept the petitioner's appearance through his counsel as provided under section 205 of Cr.P.C. and permit his counsel to take the required steps to get the proclamation notices cancelled by appearing on behalf of the petitioner in the cases pending before the trial courts, without insisting 2 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 for the physical presence of the petitioner in each cases.
2. As the petitioner and the respondents in all the above cases are more or less the same, and the reliefs sought for are also similar and especially when the facts and circumstances involved in the cases are also identical, according to me, the above Crl.M.Cs. are heard together and being disposed by this common order.
3. I have heard the learned counsel for the petitioner and also the learned Public Prosecutor who represents the 1st respondent State in the above Crl.M.C. cases. Having regard to the facts and circumstances involved in the case and in the nature of the reliefs sought for, I am of the view that, notice to the 2nd respondent can be dispensed with and the Crl.M.Cs. can be disposed of by safeguarding the interest of the 2nd respondent as well.
4. From the facts discernible as stated in the memorandum of Crl.M.Cs., it is pertinent to note that, the 3 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 allegation in each complaint is that, the petitioner herein on behalf of his company had issued cheques towards purchase price of centrifuged latex, which on presentation for encashment, dishonoured and returned unpaid and thus complaints are filed by the 2nd respondent alleging offence punishable under section 138 of the NI Act against the petitioner as well as the other accused in different courts including the court of Judicial First Class Magistrate-II, Perinthalmanna and the court of Judicial First Class Magistrate-Nilambur. Thus, S.T.Nos.477 to 481 of 2009 and S.T.C.Nos.512 to 516 of 2009 are pending for trial in the court of Judicial First Class Magistrate-II, Perinthalmanna. Similarly, S.T.C.Nos.1306 to 1309 of 2009 are also pending before the court of Judicial First Class Magistrate-Nilambur.
5. According to the petitioner, as he failed to appear before the courts below, the court initiated proceedings 4 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 under the provisions of Cr.P.C. to secure his presence and thus as evidenced by Annexure C, proclamation notices are issued under sections 82-83 of Cr.P.C., and such steps are pending against him.
6. It is the further case of the petitioner that he is an old aged person now at the age of 70 years and permanently residing in Hyderabad of Andhra Pradesh and he is suffering with Multiple Myeloma (cancer of the Plasma cells) and according to him, he had undergone chemotherapy followed by high dose chemotherapy (Melphalan 190 mg) with peripheral blood stem cell transplantation in London. He had also infected with various infections and according to him, the doctors had advised him to take proper care, otherwise the infections will lead to loss of his life. It is also stated that he is suffering from memory loss from time to time and not able to do the normal duties. To substantiate the above reasons, 5 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 the petitioner has produced Annexure B certificate issued by one Dr.P.Satya Dattatreya of Omega Hospitals, Hyderabad. Learned counsel for the petitioner, on the strength of Annexure B certificate and pinpointing the age of the petitioner, has submitted that due to his bad health condition and old agedness, it is practically impossible for him to appear in the above courts in the above referred cases and therefore it is only just and proper to permit him to appear through his counsel under section 205 of Cr.P.C. It is the further case of the petitioner that the courts below insist the physical appearance of the petitioner in the cases pending before the trial courts and therefore left with no remedy, he preferred these petitions.
7. I have carefully considered the submissions made by the counsel for the petitioner. I have also heard the learned Public Prosecutor for the State. As I indicated earlier, notice to the 2nd respondent has already dispensed 6 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 with.
8. From the facts stated above it can be seen that the petitioner is one among other accused who are facing prosecution for the offence punishable under section 138 of the NI Act which are instituted at the instance of the 2nd respondent. In each case, substantial amounts are involved, connected with the cheques in question which are allegedly dishonoured. From the averments contained in the memorandum of the above Crl.M.Cs. and from the submission of the learned counsel for the petitioner, it is obvious that almost all the cases have been instituted during the year 2009 and for the last 4 years, the above cases are pending without any progress, probably for the reason that the petitioner is unavailable for trial. From the averments in the petitions itself it is crystal clear that the petitioner has not appeared so far before the courts below and no bail was taken and therefore various steps as 7 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 contemplated under the provisions of Cr.P.C., including the proceedings under section 82 and 83 are pending against the petitioner. Now the case of the petitioner is that in case he appear before the courts below, he is likely to send to jail and the courts below insisting for the personal appearance of the petitioner.
9. At this juncture, it is relevant to note that, as I indicated earlier, almost all the cases were instituted during the year 2009 and so far the petitioner did not surrender and has not submitted himself to the jurisdiction of the courts and no bail is taken. The petitioner has not produced copy of the B'diary proceedings of the courts below in each case, so as to verify what steps are taken by the courts below to procure the presence of the petitioner and what was the approach and response of the petitioner to such steps at that point of time. The case now put forwarded by the petitioner is that he is physically unable to appear 8 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 before the courts below for the reason of his ailment and to substantiate the said fact, the petitioner heavily relied upon Annexure B certificate. Thus on the basis of Annexure B certificate, the prayer of the petitioner before this Court is to issue a direction to the courts below to accept the petitioner's appearance through his counsel as provided under section 205 of Cr.P.C. and permit his counsel to take require steps to get the proclamation notices canceled by appearing on behalf of the petitioner in the above cases. In support of his contention, the petitioner placed reliance upon the decisions reported in Basavaraj R.Patil & Ors. V. State of Karnataka & ors. [AIR 2000 (SC) page 3214], M/s.Bhaskar Industries Ltd. Vs. M/s.Bhiwani Denim & Apparels Ltd. & Ors. [AIR 2001 (SC) page 3625] and another decision of this Court in E.M.Unnienkutty @ Cheriyath Vs. State of Kerala. Going by the above decisions it is crystal clear that the 9 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 powers under section 205 or under section 317 of Cr.P.C. are exclusively vested with the trial court and according to me, it is improper for this Court to usurp such powers in exercise of the inherent powers of this Court under section 482 of Cr.P.C. The powers under sections 205 and 317 of Cr.P.C. are purely discretionary powers vested with the trial court. The trial court proceedings, particularly a copy of the B'diary proceedings of the court below in the above cases, are not furnished by the petitioner. Except his mere assertion, no material is produced to show that the courts below are insisting for his personal appearance and he has no claim that he had preferred any petition in absentia, seeking exemption under section 205 of Cr.P.C.
10. In this juncture it is relevant to note that the legal position is now well settled through the three Judges Bench decision of the Honourable Apex Court in T.G.N.Kumar V. State of Kerala & ors. [2011(1) KHC 10 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 142 (SC)]. After considering the scope of section 205 of Cr.P.C., the Apex Court has held in paragraphs 7, 8 and 9 as follows :
"7. 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 S.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 Others v. Gujarat State Fertilizer Co. Ltd. and Another, 2005 KHC 842 : 2005 (4) SCC 173 : AIR 2005 SC 2436 : 2005 (2) KLD 211 : 2005 SCC (Cri) 1020 : 2005 (3) MPLJ 271 : 2005 (125) Comp Cas 188 : 2005 (3) Mah LJ 754 : 2005 CriLJ 2566). 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 insofar as the progress of the trial is concerned and none else.
8. In Bhaskar Industries Ltd. (supra), this Court had laid down the following guidelines, which are to be borne in mind while dealing with an application seeking dispensation with the personal appearance of an accused in a case under S.138 of the NI Act:
"19. ...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 11 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 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.
9. In light of the afore - extracted legal principles, the impugned order is clearly erroneous in as much as the discretion of the Magistrate under S.205 of the Code cannot be circumscribed by laying down any general directions in that behalf. In Manoj Narain Agrawal v. Shashi Agrawal and Others, 2009 KHC 4647 : 2009 (6) SCC 385 : 2009 (2) SCC (Cri) 1096 : 2009 (4) All LJ 528 :
2009 (5) SCALE 535, this Court, while observing that the High Court cannot lay down directions for the exercise of discretion by the Magistrate under S.205 of the Code, had echoed the following views:
"Similarly, the High Court should not have, for all intent and purport, issued the direction for grant of exemption from personal appearance. Such a matter undoubtedly shall be left for the consideration before the learned Magistrate. We are sure that the Magistrate would exercise his jurisdiction in a fair and judicious manner."12
Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 In the said decision, it is further held in paragraphs 10, 11 and 12 as follows :
"10. It is equally trite that the inherent powers of the High Court under S.482 of the Code have to be exercised sparingly with circumspection, and in rare cases to correct patent illegalities or to prevent miscarriage of justice. In Madhu Limaye v. The State of Maharashtra, 1977 KHC 221 : 1977 (4) SCC 551 : 1977 KLT SN 72 : 1978 SCC (Cri) 10 : AIR 1978 SC 47 : 1978 CriLJ 165, a Bench of three learned Judges of this Court had observed that:
"...the following principles may be noticed in relation to the exercise of the inherent power of the High Court....:
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
11. Similarly, while it is true that the power of superintendence conferred on the High Court under Art.227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority. In any event, the power of superintendence cannot be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. In Jasbir Singh v. State of Punjab, 2006 KHC 1466 : 2006 (8) SCC 294 : JT 2006 (9) SC 35 : 2006 (4) KLT SN 57 : 2006 (3) SCC (Cri) 470, this Court observed that:
"So, even while invoking the provisions of Art.227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and 13 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority. The power of superintendence exercised over the subordinate Courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate Courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior Courts in the discharge of their judicial functions. It is the members of the subordinate judiciary who directly interact with the parties in the course of proceedings of the case and therefore, it is no less important that their independence should be protected effectively to the satisfaction of the litigants."
(See also -- Trimbak Gangadhar Telang and Another v. Ramchandra Ganesh Bhide and Others, 1977 KHC 552 :
1977 (2) SCC 437 : AIR 1977 SC 1222; Mohd. Yunus v. Mohd. Mustaqim and Others, 1983 KHC 536 : 1983 (4) SCC 566 : AIR 1984 SC 38 and State, New Delhi v. Navjot Sandhu and Others, 2003 KHC 668 : 2003 (6) SCC 641 :
2003 (2) KLT SN 132 : JT 2003 (4) SC 605 : 2003 SCC (Cri) 1545 : 2003 (104) DLT 794.)
12. As regards direction (iv) supra to accept and consider the written statement made by the accused, in our opinion, it is again not in accord with the language of S.313 of the Code as also the dictum laid down by this Court in Basavaraj R. Patil and Others v. State of Karnataka and Others, 2000 KHC 814 : 2000 (8) SCC 740 : 2000 (3) KLT SN 74 : AIR 2000 SC 3214 : 2000 CriLJ 4604. S.313 of the Code deals with the personal examination of the accused, and provides that:
"313. Power to examine the accused.-- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court--
(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;14
Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:
Provided that in a summons - case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). ..................................."
So, the inherent powers under section 482 of Cr.P.C. vested with this Court can be exercised only sparingly, carefully and with caution, and that too in rare cases to correct patent illegalities or prevent miscarriage of justice. In the present case, as I indicated earlier, the petitioner has not produced any B'diary proceedings and therefore this Court is not in a position to appreciate the contentions at this stage. It is equally important to note that besides the apprehension, that the petitioner will be send to jail, no material is produced to substantiate the same, especially when the petitioner has not made any attempt to move an application under section 205 of Cr.P.C. before the court below. So, according to me, following the above decision of 15 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 the Supreme Court it is for the petitioner to firstly approach the trial court for exemption as prayed for. Therefore, I am not inclined to grant the relief as such, sought for in these petitions.
11. However, considering the particular facts and circumstances involved in this case, I am of the view that, these petitions can be disposed of relegating the petitioner to approach the concerned trial courts to move an application under section 205 of Cr.P.C. for his absence through his counsel, either for a particular day or for a particular period, stating the reason and purpose, and to take appropriate steps to redress his grievance and in that event, it is for the trial court concerned to consider such application on merit and pass appropriate orders, following the dictum laid down by the Honourable Apex court in the decision cited supra, untrammelled by any of the findings or observation of this Court contain in this order. Having 16 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 regard to the facts and circumstances involved and the background of the case, according to me, to permit the petitioner to move the application in absentia as stated above, appropriate terms can be imposed, especially when the complainant is not heard by this Court and considering the long pendency of the cases before the courts below because of the absence of the petitioner.
In the result, the above Crl.M.Cs. are disposed of relegating the petitioner to approach the courts below concerned for personal exemption from his physical appearance, in the cases pending before the courts below, either on a particular date or for a particular period and also stating the purpose, and the petitioner is permitted to file such applications in absentia and in the event of filing of such application, the courts below concerned are directed to consider the same on merit and pass appropriate orders on condition, the petitioner paying a sum of `2,000/- 17 Crl.M.C.Nos.2225, 2226, 2227, 2228, 2229, 2230, 2231, 2232, 2233, 2234, 2235, 2236, 2237 and 2238 of 2013 (Rupees two thousand only) to the 2nd respondent/ complainant and by producing a memo to that effect, and further depositing a sum of `1,000/- (Rupees One thousand only) in the court below concerned, in each case and in case of deposit of the amount in the court, the same shall be remitted to the State Exchequer.
Crl.M.Cs. are disposed of accordingly.
Sd/-
V.K.MOHANAN, Judge ami/ //True copy// P.A. to Judge