Satish Kumar Mishra vs M/s. Wood Castle Spa and Resorts

Umesh Chandra Dhyani, J.—Since all these applications u/s 482 Cr.P.C. arise out of similar orders, in which an identical question of law is involved, therefore, all such applications are being decided by this common judgment and order for the sake of brevity.

At the very outset, learned counsel for the parties requested this Court to issue certain directions to the court below which may help him in deciding a bunch of 14 complaint cases instituted by the respondent against the applicant, under Sections 138 of the Negotiable Instruments Act, 1881.

But before such directions are issued, it will be useful to reproduce the observations of the Hon''ble Apex Court in TGN Kumar Vs. State of Kerala and Others, , herein blow:

Section 205 of the Code, which clothes the Magistrate with the discretion to dispense with the personal appearance of the accused, reads as follows:

Magistrate may dispense with personal attendance of accused.--(1) 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.

(2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of'' the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.

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 u/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 Vs. Gujarat State Fertilizer Co. Ltd. and Another, ]. 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 in so far as the progress of the trial is concerned and none else.

In M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. and Others, , 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 u/s 138 of the N.I. 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 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.

This court would also like to remind the trial court with it''s obligation to conclude the trial u/s 138 of the Negotiable Instruments Act, 1881, as an earliest possible, by reproducing sub-Sections (2) and (3) of Section 143 of the said Act as below:

Power of Court to try cases summarily. (1)............................................. ...................................................................

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.

(3) Every trial under this Section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.

The following directions are being issued, with the consent of learned counsel for the parties, to learned trial court:

(i) All the fourteen cases filed by the respondent against the applicant u/s 138 of the Negotiable Instruments Act, 1881, should be taken up together on a single date and whenever these cases are listed for another day, then also, all such cases should be taken up together on the next day.

(ii) Whenever any application u/s 205 Cr.P.C. is moved on behalf of the accused-applicant, the same should be disposed of, in the light of the observations made by Hon''ble Apex Court, herein above.

(iii) Needless to say that unnecessary adjournment should not be granted to any party, keeping in view the mandate of the legislature in sub-sections (2) and (3) of Section 143 of the Negotiable Instruments Act, 1881.

With the guidelines as above, all the aforesaid applications u/s 482 Cr.P.C., mentioned above, are summarily disposed of at the threshold with the consent of learned counsel for the parties. It is made clear that the other legal issues, if any, involved in the aforesaid applications u/s 482 Cr.P.C. were not pressed by them.