Delhi District Court
Amit Katyal vs State on 24 May, 2019
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
Cr. REVISION No. 820/2018, 821/2018 and 823/2018
1. AMIT KATYAL
S/o SHRI O.P. KATYAL
R/o C654, NEW FRIENDS COLONY
NEW DELHI
2. RAJESH KATYAL
S/o SHRI O.P. KATYAL
R/o C654, NEW FRIENDS COLONY
NEW DELHI
.....REVISIONISTS
VERSUS
1. STATE
THROUGH ITS DEPARTMENT OF PROSECUTION
SAKET DISTRICT COURTS (SE)
NEW DELHI
2. M/s K.K.G. PROPERTIES PVT. LTD.
THROUGH ITS AUTHORIZED REPRESENTATIVE
HAVING OFFICE AT 204, OKHLA INDUSTRIAL AREAIII
NEW DELHI 110020
....RESPONDENTS
Date of filing : 22.11.2018
First date before this court : 24.11.2018
Date of arguments : 24.05.2019
Date of Decision : 24.05.2019
Appearance : Shri Bakul Jain , counsel for revisionist
Shri Ashesh Kumar, substitute Addl. Public Prosecutor for State
Shri P. Piyush, counsel for respondent
Cr No. 820/2018, 821/2018 and 823/2018 Page 1 of 8 pages
Amit Katyal & Ors. vs State & Ors.
J U D G M E N T (O R A L)
1. These three criminal revision petitions having arisen out of three complaint cases under Section 138 Negotiable Instruments Act are taken up together for disposal. Revisionists, facing trial under Section 138 Negotiable Instruments Act have assailed common order dated 31.08.2018, whereby in the said three complaint cases, the learned magistrate dismissed the application of the revisionists under Section 317 CrPC for permanent exemption. Upon notice of these revisions, the State as well as the private respondent entered appearance through counsel. I have heard learned counsel for revisionists, learned prosecutor for State and learned counsel for private respondent.
2. The present revisionists, being accused before the learned trial court filed applications seeking permanent exemption from appearance in the trial mainly on the ground that the revisionists, being the Directors of various companies have launched a multinational business venture involving parties in Sri Lanka and China, due to which they are likely to held up for considerable period of time as they would be traveling abroad in order to attend pre scheduled and unscheduled meetings; that the revisionists are also involved in various business projects in the city of Gurugram, due to which they have to make frequent visits to Chandigarh and Haryana, as such it becomes difficult for them to appear on every date of hearing; and that in order to ensure Cr No. 820/2018, 821/2018 and 823/2018 Page 2 of 8 pages Amit Katyal & Ors. vs State & Ors.
their personal presence before the trial court on each date of hearing, they have to incur hardship and substantial monetary loss. In the said exemption applications, the revisionists also undertook to ensure that if the exemption is allowed, they shall be duly represented by their counsel on each date of hearing. In the said exemption application, the revisionists also declared that they do not challenge their identity. In the said exemption application, the revisionists extensively quoted relevant portions from various judicial precedents.
3. By way of impugned order, the said exemption applications of the revisionists were dismissed by the learned magistrate mainly on the ground that the revisionists did not submit material particulars, in the sense that details of the said businesses were not revealed by the revisionists. Besides that, the learned magistrate further observed that apart from lack of particulars, the ground extended by the revisionists cannot entitle them to permanent exemption. Observing that the grounds taken by the revisionists are vague, learned magistrate dismissed the said exemption applications.
4. Hence, the present revision petitions.
5. During arguments, learned counsel for revisionists took me through the above mentioned record and contended that the impugned order is not sustainable in the eyes of law. It is submitted on behalf of revisionists that for past three years, trials on the said three complaint Cr No. 820/2018, 821/2018 and 823/2018 Page 3 of 8 pages Amit Katyal & Ors. vs State & Ors.
cases are standstill on account of fault of the present private respondent, whose authorized representative left their services after being partly examined. It is argued by learned counsel for revisionists that since the offence alleged against them is under Section 138 Negotiable Instruments Act, there is no issue of identity of the revisionists as in addition to the revisionists, the company being run by them is also an accused before the trial court.
6. On behalf of State, learned prosecutor has supported the impugned order.
7. On behalf of private respondent, it is argued by learned counsel that permanent exemption can be allowed only in rare circumstances where the applicant is able to establish that the suffering on account of appearance would be enormous. Learned counsel for private respondent argues that since the revisionists did not disclose complete particulars of the businesses in which they are involved, they were rightly denied permanent exemption. It is argued by learned counsel for private respondents that monetary loss cannot be a ground to grant permanent exemption. It is also argued on behalf of private respondents that nothing prevents the revisionists from seeking exemption from personal appearance by moving applications on date to date basis.
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8. Both sides place reliance on the judgment of Hon'ble Supreme Court of India in the case of Bhaskar Industries Ltd. vs Bhiwani Denim & Apparels Ltd., (2001) 7SCC 401.
9. I am in agreement with the learned counsel for private respondent that permanent exemption should be allowed in rare cases and that nothing prevents the revisionists from moving personal exemption applications on date to date basis. But the question is as to if they can move personal exemption applications on date to date basis, logically speaking why they should be denied the permanent exemption. For, if the permanent exemption is granted, trial would proceed more expeditiously. So far as the rare cases parameter, keeping in mind the extreme vide spectrum of criminal cases, the test has to be whether the case in hand is the one in which identity of the accused is crucial. In the prosecutions, like one under Section 138 Negotiable Instruments Act, identity of the accused is not a crucial factor.
10. It also has to be kept in mind that the purpose of insisting personal appearance of an accused in criminal cases is in order to ensure conduct of trial in his presence as stipulated by Section 273 CrPC. The purpose of insisting personal appearance of an accused cannot be by way of punishment. In cases where identity of accused is not in question, insisting on personal appearance of an accused is often counter productive and leads to delays.
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11. In the case of Bhaskar Industries (supra), referred to by both sides, the Hon'ble Supreme Court of India examined the scope of provisions under Section 317 CrPC and held thus :
"14. The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administration of criminal justice. For that purpose the proceedings of the court in the case should register progress. Presence of the accused in the court is not for marking his attendance just for the sake of seeing him in the court. It is to enable the court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the court in that particular case.
15. These are days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of interState transactions through 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 a summons case. When a Magistrate feels that insistence of personal attendance of the accused in a summon 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".
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12. Merely because the revisionists did not mention the details of the multinational ventures and other business projects, the relief of permanent exemption could not be denied to them. It is not a case of a conventional crime in which identity of the accused is a crucial factor. It is an economic offence and as the latest trend of judicial as well as legislative pronouncements shows, the proceedings under Section 138 Negotiable Instruments Act are not treated at par with a hardcore criminal trial. Concepts of interim relief and binding nature of mediation processes etc are being accorded acceptance in such proceedings. Keeping in mind these factors also, insistence on personal appearance of accused persons in proceedings under Section 138 Negotiable Instruments Act is nothing but punitive action that too, before conclusion of trial. In such cases, insistence of the complainant for personal appearance of accused is only a tool of pressure tactics in order to ensure that the accused succumbs and pays off the disputed amount without effectively exercising his right to defend himself.
13. There is another aspect. Insistence on personal appearance of accused persons in such cases not only causes monetary loss to the accused but also has ramifications on the overall economy of the country, which ironically was the underlying idea behind the very crime conception under Section 138 Negotiable Instruments Act.
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14. In view of above discussion, I am unable to uphold the legality, correctness or propriety of the impugned orders, so the same are set aside. The revision petitions are accordingly allowed.
15. Matters are remanded back to the learned magistrate with the directions to dispose of the permanent exemption applications of the revisionists in accordance with law discussed above.
16. A copy of this judgment be sent to the learned trial court and revision files be consigned to records.
Announced in the open court on
this 24th day of May, 2019 (GIRISH KATHPALIA)
District & Sessions Judge
South East, Saket Courts
Digitally signed New Delhi 24.05.2019 (a)
by GIRISH
KATHPALIA
GIRISH
Date:
KATHPALIA 2019.05.24
14:48:39
+0530
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Amit Katyal & Ors. vs State & Ors.