Delhi District Court
Industries Ltd vs M/S. Bhiwani Denim & Apparels Ltd (2001) ... on 7 August, 2012
IN THE COURT OF SHRI ARUL VARMA : MM
PATIALA HOUSE COURTS : NEW DELHI
Case No: 85/1/12
CVCIGP II EMPLOYEE ROSEHILL LIMITED
IFS COURT,
TWENTY EIGHT, CYBERCITY,
EBENE, MAURITIUS
THROUGH ITS AUTHORIZED REPRESENTATIVE
SH. AJAY TANDON .......Complainant
Vs
SURYA VINAYAKA INDUSTRIES LIMITED
E3, MANGOLPURI INDUSTRIAL AREA,
PHASEII, MANGOLPURI,
DELHI110 034 ............. Accused
1.Vide order dated 13.4.2012, the accused persons in the present complaint case were directed to appear in person on 01.8.2012 for the purpose of furnishing their bail bonds and for framing of notice upon them.
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2. However, on 01.8.2012, ld. Counsel for the accused persons moved an application on their behalf seeking their exemption from personally appearing before the Court. The exemption was sought on the basis of the order dated 11.4.2012 passed by the Hon'ble High Court of Delhi, a copy whereof was attached with the application seeking exemption from personal appearance.
3. Ld. Counsel for the complainant urged that a notice u/s 251 Cr.P.C.
be framed against the Counsel for the accused as the Hon'ble High Court had permitted the accused to appear before this Court through their Counsel. However, ld. Counsel for the accused remonstrated that he had no instructions from his clients in this regard. This, according to the complainant, would tantamount to stalling of the proceedings initiated against the accused u/s 138 of the Negotiable Instruments Act,1881.
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4. On 04.8.2012, Sh. Sandeep Sethi, Sr. Advocate on behalf of the complainant contended that, in the absence of the accused on account of personal exemption been granted to them, notice ought to be framed against their counsel forthwith. However, Sh. Vikas Arora, Ld. counsel for the accused refuted this contention. Both Counsels argued that the matter in extenso and the gist of their submissions can be summed up as follows:
SUBMISSIONS OF THE COMPLAINANT:
There is no specific order of the High Court to the effect that the proceedings before this Court be stayed. The Counsel for the accused is duty bound to accept the notice u/s 251 Cr.P.C. on their behalf when the accused have been personally exempted from appearance.
If the Counsel for accused does not cooperate, then the presence of the accused should be secured by adopting coercive measures. Requirements of para 17 of the judgment titled M/S. Bhaskar Case No: 85/1/12 Page No. 3 of 18 Industries Ltd vs M/S. Bhiwani Denim & Apparels Ltd (2001) 7 SCC 401 have been fulfilled, and as such, notice can be framed upon the counsel.
SUBMISSIONS OF THE ACCUSED:
The order of the Hon'ble High Court virtually amounts to a stay of proceedings before this Court. A pleader cannot be forced to get a notice u/s 251 Cr.P.C. served upon him in the absence of specific instructions by his clients in this regard.
Unless bail bonds are furnished by the accused, notice cannot be framed against them. And since the accused were exempted from personally appearing before this Court, the requirement of furnishing bail bonds need not be complied with. And thus, the trial cannot proceed Requirements of para 17 of the judgment titled M/S. Bhaskar Industries Ltd vs M/S. Bhiwani Denim & Apparels Ltd (2001) 7 SCC Case No: 85/1/12 Page No. 4 of 18 401 have not been fulfilled.
5. After hearing the submissions of both parties, the following issues arise for consideration: Issue DECISION POINTS FOR DETERMINATION No. THEREON 1 Whether the order dated 11.4.2012 of Hon'ble High Court of Delhi tantamounts to a Negative stay of proceedings before this Court? 2 Whether, in a case where an accused has been granted exemption from personal appearance, notice u/s 251 Cr.P.C. can be Affirmative served upon his counsel, in the absence of 'specific instructions' from the accused in this regard?
3 Whether, in a case where an accused has been granted exemption from personal appearance, furnishing of a bail bond by the Negative accused is a prerequisite before notice can be framed against him, through his counsel?
STATEMENT OF REASONS FOR THE DECISION:
ISSUE NO 1:
6. In order to adjudicate upon this issue, it would be apposite to Case No: 85/1/12 Page No. 5 of 18 peruse para no.8 of the Hon'ble High Court's Order, which is reproduced as hereinunder: "8. In the meantime, the petitioners are permitted to appear, through Counsel, before the ld. Trial Court till further order."
7. Ld. Counsel for the accused had submitted that the accused had moved an application u/s 482 Cr.P.C. for quashing of proceedings before this Court and Hon'ble High Court had suo motu granted exemption to the accused from personally appearing before this Court. Further, ld. counsel has invited the Court's attention to para no. 4 of the order dated 11.04.2012 wherein the Hon'ble High Court had observed that:
"4. I, prima facie, find merit in the submission which needs consideration."
8. Ld. Counsel for the accused thus contended that construction of para no. 8 read with para no. 4 of the order virtually tantamounts to Case No: 85/1/12 Page No. 6 of 18 grant of stay of proceedings.
9. Per contra, Ld. counsel for the complainant had contended that no construction ought to be read in the aforementioned order and that the said order was absolutely pellucid.
10. A perusal of the order dated 11.4.2012 reveals that the Hon'ble High Court had granted the accused exemption from personally appearing before this Court till further orders. The accused were permitted to appear through their counsel. An exemption is ordinarily granted taking into account parameters like the distance the accused has to travel, any other physical or financial incapacity, the travails and tribulations that an accused has to undergo et al. However, these conditions are also to be balanced with the rights of the complainant and it is to be ensured that no prejudice is caused to the complainant.
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11. When the Hon'ble High Court granted exemption to the accused, and permitted them to appear before before this Court through their Counsel, it, in my humble opinion, would not have intended that the proceedings be suspended before this Court. If it did so intend, it would have conveyed this intention in trenchant terms. An observation that the petition u/s 482 Cr.P.C. for quashing of proceedings may have some merit and warrants consideration, would not be the reason for grant of exemption from personal appearance and certainly does not amount to stay of the proceedings.
ISSUE NO 2:
12. The determination of this issue depends upon the interpretation of para 17 of M/S. Bhaskar Industries Ltd vs M/S. Bhiwani Denim & Apparels Ltd (2001) 7 SCC 401which is reproduced hereunder:
"The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of Case No: 85/1/12 Page No. 8 of 18 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 Case No: 85/1/12 Page No. 9 of 18 proceedings including examination of the witnesses".
13. Ld counsel for the accused contended that the first requirement of the 'precaution' provided has not been fulfilled as no 'undertaking' has been provided by the accused to the satisfaction of the Court. On the other hand, Ld Counsel for the complainant submitted that the 'undertaking' was implicit when the accused acquiesced to being represented by their pleader before this court.When the Hon'ble High Court permitted the accused to appear through their counsel, then it tantamounted to grant of consent by the accused to the latter to accept notice on their behalf.
14. Further, a perusal of the following extracts of the vakalatnama would make it amply clear that the counsel had the requisite authorisation to get the notice framed upon him, on behalf of his clients :
"To deposit, draw and receive money, cheques, cash and grant receipts hereof and to do all other acts and things which may be necessary to be done for the progress and in course of the Case No: 85/1/12 Page No. 10 of 18 prosecution of the said case.", and "And I/We the undersigned do hereby agree to ratify and confirm all acts done by the Advocate or his substitute in the manner as my/our own acts, as if done by me/us to all intents and purpose."
15. Thus, there was no requirement of giving further specific instructions by the accused to the Ld counsel in as much as the vakaltnama sufficiently bestowed the counsel with the requisite authorisation. ISSUE NO 3:
16. Ld Counsel for the accused had canvassed with great fervour that as per the mandate of Rajesh Agarwal vs State & Anr Crl. M.C. No. 1996/2010 & Crl.M.A. No. 7672/2010 , the first step in the trial of a case under Section 138 NI Act is the furnishing of bail bonds by the accused. The relevant extracts are:
"Step II : If the accused appears, the MM shall ask him to furnish bail bond to Case No: 85/1/12 Page No. 11 of 18 ensure his appearance during trial and ask him to take notice u/s 251 Cr. P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under section 145(2) of N.I. Act for recalling a witness for cross examination on plea of defence."
17. It has been vehemently contended that framing of notice upon the accused is only the second step. Since the accused have been exempted from personal appearance, they cannot be compelled to furnish bail bonds and as a consequence thereof, notice cannot be framed against them.
18. Per contra, Ld Counsel for the complainant submitted that once exemption is granted, the requirement of furnishing of bail bonds is dispensed with.
19. At a first blush, the bare perusal of an order granting exemption from personal appearance at the incipient stage of trial would lead Case No: 85/1/12 Page No. 12 of 18 to an inference that an accused need not furnish a bail bond once he has been granted exemption. This would create a difficult situation as the matter would not be able to move on its next logical step in the absence of the accused and nonfurnishing of bail bond by him.
20. To resolve this predicament, recourse can be had to the following observations of the Hon'ble High Court of Delhi passed in Kajal Sengupta V Ahlcon Ready Mix Concrete Ltd Crl M.C 1640/2011 dated 27.04.2012:
"11. The concept and purpose of securing bail by the accused person from the concerned Court is mutually exclusive to the purpose of grant of personal exemption from appearance. It is a part of court proceeding when a person is enlarged on bail by the Court, with an undertaking to the Court he, being an accused in the offence, shall attend the Court during trial. Furnishing of bail bonds and surety, by the accused, ensures that the accused shall Case No: 85/1/12 Page No. 13 of 18 abide by the conditions of bail and any subsequent order of the Court requiring his attendance in Court. On the other hand, personal exemption from appearing can be requested by the accused to the Magistrate, either permanently or on a particular date. The Magistrate may, subject to certain conditions and directions, allow the personal exemption of the accused. However, such permanent personal exemption cannot be construed or understood to be a blanket order dispensing with the appearance of the accused and shall be subject to Section 205 (2) and Section 317 (1) of the CrPC. Now, if at any subsequent stage, the Magistrate desires the presence of the accused person, he may summon him to appear inperson, and in failure to do so, he may take coercive steps by Case No: 85/1/12 Page No. 14 of 18 forfeiting the bail bond or attach his movable property. This procedure, could only be effective if the accused had previously surrendered to the Court and obtained bail by furnishing bail bond and surety. The two proceedings, which are apparently independent, seem to converge at this juncture.
Therefore, the processes of bail and personal exemption from appearance, broadly operate in different spheres of the trial, though are intrinsically connected."
21. An understanding of the aforesaid paras gives an impression that the process of obtaining bail and of personal exemption from appearance operate in different spheres. Furnishing of bail bond by the accused is not a sine qua non for the grant of personal exemption from appearance . The Court has the discretion, as and Case No: 85/1/12 Page No. 15 of 18 when it deems fit, to call upon the accused and to direct him to execute the bail bonds notwithstanding the grant of personal exemption to him.Thus, when furnishing of bail bond is not mandatory, the trial can proceed ahead on its due course without any difficulty.Notice can be framed without furnishing of bail bonds.
22. The aforesaid discussion on all these issues makes it abundantly explicit that a counsel who represents an accused who duly executes a vakaltnama in favour of the former and who has been granted personal exemption, has the necessary authorisation to get a notice u/s 251 CrPC served upon him.The counsel is the one who statutorily personates the accused for all intents and purposes.The words "accused" in Section 251 CrPC is not limited to the person of the accused but may include a pleader where he is permitted by the court toi appear through him. (Nihal Singh vs Arjun Das 27 (1985) DLT 147) However, it is an entirely different scenario when the counsel refuses to get the notice served upon him.It will be deemed the accused has not been represented Under such compelling circumstances, it becomes imperative to secure the presence of the accused in order to continue with the trial.Since the counsel for the accused has refused to accept the notice upon him on behalf of the accused, the court cannot compel the Ld counsel to do so but it Case No: 85/1/12 Page No. 16 of 18 definitely can issue notice to the accused to enter appearance.
23. At this juncture, it would be apt to peruse the following extracts of Bhaskar Industries case (supra):
"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 Case No: 85/1/12 Page No. 17 of 18 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."
24. The presence of his counsel cannot be for the mere purpose of following the proceedings, but to take active participation in them. The proceedings cannot be allowed to be stultified in this manner. Therefore, in view of the foregoing compelling circumstances and taking into account the fact that they have misused the liberty granted to them by the Hon'ble High Court, court notice is hereby issued to the accused persons, through their counsel, to appear on the next date of hearing for the purposes of furnishing of bail bonds and framing of notice.
Put up for further proceedings on .
Announced in the open Court on 07.08.2012.
(ARUL VARMA) MM (NI Act) 02 PATIALA HOUSE COURTS, NEW DELHI Case No: 85/1/12 Page No. 18 of 18