Allahabad High Court
M/S Shree Narain Sarees/ Textiles ... vs State Of U.P. And Another on 9 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Neutral Citation No. - 2025:AHC:5108 Court No. - 77 Case :- APPLICATION U/S 482 No. - 28772 of 2024 Applicant :- M/S Shree Narain Sarees/ Textiles Situated Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kavindra Singh Counsel for Opposite Party :- G.A.,Purushottam Mani Tripathi Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Kavindra Singh, learned counsel for the applicant, Sri Purushottam Mani Tripathi, learned counsel for the opposite party no.2 as well as Sri Padmakar Rai, learned A.G.A for the State and perused the record.
2. The instant application under Section 482 Cr.P.C. has been filed for quashing the order dated 07.08.2024 passed by the Additional Court, Varanasi in Complaint Case No.151/2021 (M/S Narain Sarees Vs. M/S M.S.H. Sarees Pvt. Ltd.), under Sections 138 N.I. Act, P.S. Chowk, District Varanasi and direct the opposite party no.2 to appear before the court below personally although order dated 23.04.2024 passed by this Hon'ble Court in Criminal Revision No.905/2024 clearly shows O.P. No.2 has not exempted for his personal appearance before the court below.
3. The sole contention of learned counsel for the applicant is that the court below while allowing the application of the opposite party no.2 under Section 205 Cr.P.C. failed to consider that for the purpose of recording statement under Section 251 Cr.P.C. the presence of the accused is necessary. It is further submitted by learned counsel for the applicant that the applicant against the rejection of discharge application has approached this Court through Application U/S 482 No.905 of 2023, which was dismissed with liberty to the applicant to appear before the court below but the opposite party no.2 instead of appearing before the court below moved an application under Section 205 Cr.P.C. to permit him to appear through his counsel. It is lastly submitted that the impugned order is absolutely cryptic and no reason for allowing the same.
4. Per contra, learned counsel for the opposite party no.2 has vehemently opposed the prayer made by learned counsel for the applicant and submitted that the Apex Court in the case of Sharif Ahmad and others Vs. State of U.P. and others in Criminal Appeal No.2357 of 2024, has observed that even before applying for bail, the personal appearance under Section 205 Cr.P.C. cam be exempted. It is further submitted by counsel for the applicant that in the case of Bhaskar Industries Limited Vs. Bhiwani Denim and Apparels Ltd. and others, (2001) 7 SCC 401, in which Apex Court has observed in paragraph nos.16 and 17 that in the proceeding under Section 138 N.I. Act, Court can grant exemption from personal appearance under Section 205 Cr.P.C. even for recording his plea under Section 251 Cr.P.C. provided the accused undertakes before the Court that his counsel will make such plea on behalf of the accused and also undertakes that he will not dispute his identity as the particular accused in case and he will not have any objection in taking evidence in his absence. It is further submitted by learned counsel for the opposite party no.2 that the Apex Court in the case of T.G.N. Kumar Vs. State of Kerala and others, (2011) 2 SCC 772, has observed that it is the discretion of Magistrate to allow application under Section 205 Cr.P.C. as the concerned Magistrate is Master of the Cort so as to progress of the trial is concerned. Learned A.G.A. has also adopted the arguments of learned counsel for the opposite party no.2.
5. The Apex Court in the case of Sharif Ahmad and others Vs. State of U.P. and others, in paragraph no.47 has observed that even before applying for bail, application under Section 205 Cr.P.C. can be allowed by the court concerned considering the special fact of the circumstances. Paragraph No.47 of Sharif Ahmad (supra) is being quoted as under:-
"47. Further, the observation that there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code31 should not be read in a restrictive manner as applicable only after the accused has been granted bail. This Court in Maneka Sanjay Gandhi and another Vs. Rani Jethmalani held that the power to grant exemption from personal appearance should be exercised liberally, when facts and circumstances require such exemption. Section 205 states that the Magistrate, exercising his discretion, may dispense with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. While provisions of the Code are considered to be exhaustive, cases arise where the Code is silent and the court has to make such order as the ends of justice require. In such cases, the criminal court must act on the principle, that every procedure which is just and fair, is understood as permissible, till it is shown to be expressly or impliedly prohibited by law."
6. So far as the contention of learned counsel for the opposite party no.2 that for recording the plea under Section 251 Cr.P.C. in the proceeding under Section 138 N.I. Act, presence of the accused is necessary is also misconceived because the Apex Court in the case of Bhaskar Industries Limited Vs. Bhiwani Denim and Apparels Ltd. and others, has also observed that even the plea under Section 251 Cr.P.C. can be recorded through counsel if the application of accused from personal appearance is exempted and he undertakes that his counsel will make plea on his behalf and in the presence of his counsel evidence will be recorded. Paragraph Nos.15, 16, 17 of Bhaskar Industries Limited (supra) are being quoted as under:-
"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. 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."
7. From the perusal of above legal position, it is clear that application under Section 205 Cr.P.C. is maintainable at any stage of trial even prior to seeking bail and same will also apply at the stage of Section 251 Cr.P.C., therefore, even at the time of first appearance before the trial court, application under Section 205 Cr.P.C. can be allowed in appropriate case for exemption from personal appearance by the court below, if the accused undertakes that his counsel will make plea on his behalf even at the stage of 251 Cr.P.C. and evidence will be recorded in presence of his counsel.
8. In the present case, though, from the perusal of the impugned order, it appears that the court below while allowing the application under Section 205 Cr.P.C. has not mentioned whether any undertaking has been given by the accused about the fact that his counsel will make pleas on his behalf and he will not have any objection if evidence is recorded in his absence but in presence of his counsel. From the perusal of the application filed by the opposite party no.2 under Section 205 Cr.P.C., it is explicit that the clear undertaking have been made by the opposite party no.2 as required by the Apex Court in the case of Bhaskar Industries Limited (supra). Even otherwise, the basic purpose of law is to decide the case under Section 138 N.I. Act, expeditiously and learned counsel for the applicant did not dispute this legal position and learned counsel for the applicant and learned counsel for the opposite party no.2 jointly submitted that if this Court directs for earlier disposal of proceeding in question, then they will not have any objection and they will co-operate in the expeditious trial of Complaint Case No.151 of 2021.
9. In view of the above, this Court does not find any illegality in the impugned order dated 07.08.2024 passed by Additional Court, Varanasi in Complaint Case No.151 of 2021, therefore, the relief claimed is rejected.
10. However, considering the fact the complaint in question has been pending since, 2021 and counsel for both the parties have jointly submitted that if this Court direct for expeditious trial of the complaint case, they will not have objection and they will co-operate for the trial, this Court further directs the court below to conclude the trial of Complaint Case No.151 of 2021 as expeditiously as possible as per the mandate of N.I. Act.
11. It is made clear that on the next the pleas of the opposite party no.2 will be recorded under Section 251 Cr.P.C.
Order Date :- 9.1.2025 Jitendra