Allahabad High Court
Suresh Jain vs State Of U.P And Another on 17 March, 2021
Bench: Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- APPLICATION U/S 482 No. - 4383 of 2021
Applicant :- Suresh Jain
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Utkarsh Malviya,Priyanka Midha,Ram M. Kaushik
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Varma,J.
Supplementary affidavit, filed today, is taken on record.
The present application under Section 482 of the Criminal Procedure Code has been filed with the prayer to quash the entire proceedings of Case No. 187 of 2016 (Neetu Saxena vs. Suresh Jain) pending before the Court of Additional chief Judicial Magisrate-IV (ACJM), Moradabad and the impugned order dated 5.3.2020 issuing non-bailable warrant against the applicant by the court of Additional Chief Judicial magistrate-IV (ACJM) and order dated 5.6.2018 rejecting the transfer application filed by the applicant before the court of A.C.J.M.IV, Moradabad.
The present application arises out of a complaint case filed by Smt. Neetu Saxena against the applicant on account of dishonour of cheque issued by the applicant. The complaint was filed under Section 138 and 141 of N.I. Act before the Metropolitan Magistrate, Tees Hazari Court, New Delhi.
On 16.11.2015 the aforesaid complaint case was transferred to the Court at Moradabad by the order of Metropolitan Magistrate, Tees Hazari Court, New Delhi.
The applicant appeared at the concerned Court at Moradabad on 14.7.2017 and was granted bail on the same date. Counsel for the applicant contends that the applicant on 20.11.2018 has appeared before the Court below and has tendered his defence under Section 148(2) of the Negotiable Instruments Act. Subsequently on 18.11.2019 the applicant filed an application under Section 205 Cr.P.C. through his counsel seeking exemption from personal appearance before the Court concerned on the ground that he is senior citizen aged about 70 years and is suffering from several serious medical ailments and since he is resident of Gurgaon and the present case is pending before the Court at Moradabad, it is extremely painful for him to appear in the Court below on each and every date.
Learned counsel for the applicant submits that the aforesaid application is still pending consideration and the Court has proceeded further and issued a non-bailable warrant on 5.3.2020 against him.
Learned counsel for the applicant has relied upon the judgment of Hon'ble Supreme Court in the case of Bhaskar Indurstries Ltd. vs. Bhiwani Denim and Apparels Ltd. and another reported in (2001) 7 SCC 401. The relevant portion of the said judgment is quoted hereinbelow :
"19. The position, therefore, boils down to this: 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 itself inflict enormous suffering or tribulations to 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 may reiterate that when an accused makes an application to a Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further."
Reliance has also been placed upon the judgment of the Apex Court in Meters and Instruments Private Limited and another vs. Kanchan Mehta reported in (2018) 1 SCC 560. The Hon'ble Apex Court in paragraph 15 has held as follows :
"15. In Bhaskar Industries Ltd. versus Bhiwani Denim & Apparels Ltd.27, this Court considered the issue of hardship caused in personal attendance by an accused particularly where accused is located far away from the jurisdiction of the Court where the complaint is filed. This Court held that even in absence of accused, evidence can be recorded in presence of counsel under Section 273 Cr.P.C. and Section 317 Cr.P.C. permitted trial to be held in absence of accused. Section 205 Cr.P.C. specifically enabled the Magistrate to dispense with the personal appearance. Having regard to the nature of offence under Section 138, this Court held that the Magistrates ought to consider exercise of the jurisdiction under 26 TGN Kumar v. State of Kerala (2011) 2 SCC 772 27 (2001) 7 SCC 401 Section Cr.P.C. to relieve accused of the hardship without prejudice to the prosecution proceedings. It was observed :
"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."
Counsel for the applicant has confined his relief only for early disposal of his application dated 18.11.2019 under Section 205 Cr.P.C.
Learned AGA Sri Nikhil Chaturvedi has no objection.
Heard learned counsel for the applicant as well as learned A.G.A. for the State respondent and perused the record.
It is not in dispute that the application of the applicant dated 18.11.2019 is still pending consideration and no orders have been passed till date, therefore, the present application is disposed of with the direction to the Court concerned to make every endeavour to pass appropriate orders on the application dated 18.11.2019 strictly in accordance with law within a period of three weeks from the date of production of a copy of this order.
For a period of four weeks from today, no coercive action shall be taken against the applicant in the aforesaid case.
Order Date :- 17.3.2021
S.S.
