Siemens Ltd. and Others vs N.E.P.C. Micon Ltd.

A. Ramamurthi, J.—The petitioners are accused in C. C. No. 5566 of 1996 on the file of the VIth Metropolitan Magistrate, Egmore. They

have preferred the revision aggrieved against the order of dismissal passed in Criminal Miscellaneous Petition No. 1140 of 1999.

The case in brief is as follows :

The petitioners filed a petition u/s 205 of the Criminal Procedure Code, 1973. The first accused-company is represented by the company

secretary, who is in charge of the company affairs at Bombay. As the company secretary, who has to represent the company in all matters on a

day-to-day basis, his presence is required in Bombay. The second petitioner is an industrialist and chairman of the company and he is also director

of many other companies. The third petitioner is a full time director of the company, who co-ordinates various divisions in the company at Bombay.

The fourth petitioner is the general manager, marketing, who has to meet various customers in various parts of Madras. The fifth petitioner is the

corporate head of the company division at Germany, who also travels out of India to various countries. The seventh petitioner is the commercial

head of the company. The eighth petitioner is the full time director of the medical division. The petitioners do not dispute their identity before the

court. They undertake to appear before the court as and when necessary. They being away from Madras, find it difficult to appear before the court

on every hearing. They are prepared to allow the proceedings in the case to be conducted in their absence while they are represented by their

counsel. Their personal appearance has to be dispensed with and they should be permitted to be represented by their counsel.

The learned magistrate dismissed the application on the ground that excepting one of the accused, none of them has appeared and since it is a

private complaint, he was not inclined to allow the petition u/s 205 of the Criminal Procedure Code and dismissed the same. Aggrieved against

this, the present revision is filed.

Learned counsel for the petitioners contended that summons issued to the fourth petitioner was received on June 4, 1999, and counsel entered

appearance on behalf of other petitioners also and the case was adjourned to June 21, 1999. They were not served with the copy of the complaint

as contemplated u/s 204(3) of the Criminal Procedure Code. When a copy was sought for, the court informed that the copy of the complaint could

be given after all the accused appear in the court. It is against the provisions of Section 204(3) of the Criminal Procedure Code and Rule 7 of the

Criminal Rules of Practice. They also applied for a certified copy of the complaint ; but, however, it was returned on June 7, 1999, with an

endorsement, copies are given only when all the accused are present. The fourth petitioner filed a revision before the IVth Additional Sessions

Court, Madras, and obtained stay of all further proceedings. Now warrant has been issued against the petitioners. The petitioners have been kept

in the dark about the nature of the accusation. It has been held by this court that the presence of the accused for obtaining copies under Sections

204 and 205 of the Criminal Procedure Code is not mandatory.

Heard learned counsel for the petitioners.

Learned counsel for the petitioners/accused contended that in respect of the business dealings done by the company, the materials and records

will speak. The company had already filed a suit C. S. No. 1019 of 1995 before this court, wherein a decree was passed, directing the

complainant to pay a sum of more than Rs. 76 lakhs. Further, in respect of the dishonoured cheque issued by the respondents, the complaint u/s

138 of the Negotiable Instruments Act has been filed and it is pending trial. The present prosecution against the petitioners, who are the directors

and officers of the company, is nothing but an act of vindictiveness and an abuse of the process of court. The dismissal of the petition u/s 205 of the

Criminal Procedure Code is not proper and correct in view of the undertaking given by the petitioners themselves. There is nothing in the Criminal

Procedure Code to indicate that the personal attendance of the accused is a must in the first instance. The discretion exercised by the magistrate is

not in consonance with the provisions of Section 205(1) of the Criminal Procedure Code and also the judicial pronouncements of this court. The

learned magistrate should have exercised the discretion liberally since no prejudice is caused to the complainant. In fact, the warrants are pending

against other accused and no purpose will be served even if the petitioners appear in person.

Learned counsel for the petitioners relied upon a decision in Periyar Dividar Kazhagam Vs. The State of Tamil Nadu and Another, for the

proposition that the court need not wait for appearance of other accused in order to verify whether provisions u/s 204(5) of the Criminal

Procedure Code have been complied with or not. Learned counsel also relied upon a decision in A S. K. Rama Iyer v. T. Kannan [1980] LW 31,

wherein it is observed that the powers of the court u/s 205 of the Criminal Procedure Code have to be exercised in each case where the provisions

are invoked, having regard to the circumstances of each case, the condition of the accused, the necessity for his personal attendance and the

interests of justice. To lay down in advance what the magistrate is ""pleased"" to call a ""policy"" is wooden, mechanical, arbitrary and violative of the

provisions of Section 205, because that provision contemplates the court dispensing with the personal appearance of the accused and permitting

him to appear by his pleader, if the magistrate sees reason so to do. This decision is applicable to the case on all fours.

Learned counsel also relied upon Manager, V. G. Panneerdoss and Co. v. Nataraja Devar [1991] LW 25 of this court and it is observed that

this court has pointed out, that the provisions of Section 205 of the Criminal Procedure Code may have to be used liberally, especially in a case of

this type, where the identity of the petitioners is not in dispute. Sticking on to some unnecessary procedure, not contemplated in law, will not tend,

for the furtherance of the cause of justice.

The aforesaid decisions go a long way to show that the entire approach made by the trial court is not proper and correct. Considering the fact

that most of the accused are residents of Bombay and they are the chairman and directors of a particular company, the discretion ought to have

been exercised in their favour. Even in their petition, it is clearly stated that there is no dispute about the identity and also undertake to appear

before the court as and when required by the court. Under the circumstance, I am of the view that the order passed by the court below is liable to

be set aside.

For the reasons stated above, the revision is allowed and the order passed by the trial court in Criminal Miscellaneous Petition No. 1140 of

1999 is set aside and the petitioners are allowed to represent through counsel u/s 205 of the Criminal Procedure Code. The petitioners should file

an affidavit of undertaking before the trial court that they would appear before the court as and when they required. Consequently, Criminal

Miscellaneous Petition No. 4708 of 1999 is closed.