KAJAL SENGUPTA Vs. AHLCON READY MIX CONCRETE

JUDGEMENT

(1.) The petitioner seeks quashing of the order of the Ld. MM dated 11.02.2011, in CC No. 1448 of 2010 directing him to appear personally on the next date of hearing.

(2.) In the complaint filed by the respondent/complainant against the petitioner under Section 138, Negotiable Instruments Act (for short the Act?), summons were issued to the petitioner by the learned M.M. vide his order dated 29.8.2007. The accused person preferred a petition under Section 482 CrPC in this Court seeking quashing of the complaint which was dismissed vide its judgment dated 10.02.2009, with an observation that any request for exemption from personal appearance be made before the concerned Magistrate. The Ld. MM vide order dated 19.05.2009 exempted the petitioner from personal appearance with the direction that if at any stage of the proceeding, the petitioner is required, he shall have to appear in person. The complainant/ respondent company preferred a revision to this Court against the said order of the Ld. MM granting personal exemption to the petitioner, which was dismissed by this Court vide order dated 07.01.2010, with the liberty to move an appropriate application before the Ld. MM for revocation of personal exemption of the petitioner. Since the exemption from appearance of the petitioner was continuing, notice under Section 251 CrPC was framed against the petitioner through his counsel. Thereafter, the Ld. MM vide order dated 11.02.2011 directed the petitioner herein to personally appear before him for furnishing the bail bond and disclosing his defense. The petitioner being aggrieved by this order of the Ld. MM has approached this Court seeking quashing of this order and to continue to be represented through his counsel, at the trial.

(3.) The learned counsel for the petitioner submitted that the petitioner was granted permanent exemption from personal appearance by the Ld. MM vide order dated 19.05.2009, subject to the condition that the petitioner shall appear in person as required by the Court in any proceeding in the case. The requirement of bail do not form a part of the proceeding as contemplated by the Ld. MM. Drawing my attention to Form 45, it was submitted that the requirement of bail bonds is to ensure the presence of the accused in Court during trial, which in the present case, has already been dispensed by the Magistrate vide order dated 19.05.2009. In view of Section 205 CrPC, it is further submitted that, grant of bail or execution of bail bonds by the accused is not a sine qua non for the grant of personal exemption by the Magistrate. It was further submitted that, in view of the judgment of the Hon?ble Supreme Court in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. & Ors, 2001 7 SCC 401, the petitioner can be exempted from personal appearance even for the first appearance, if he is duly represented by his pleader. Further, even at the stage of the framing of notice under Section 251 CrPC, the Magistrate is empowered to record the plea of the accused when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused has been dispensed with. In support of his contention, the learned counsel relies upon M/s Chowriappa Construction v. M/s Embassy Contructions & Development, 2002 CrLJ 3863, V.S. Reddy v. M/s Excel Glasses Ltd, 2010 CrLJ 4171, S.V. Mazumdar & Ors. v. Gujarat State Fertilizers & Anr, 2005 4 SCC 173, Sushil Kumar Gupta v. State of Jharkhand, 2005 CrLJ 440, VIshwa Nath Kiloka v. 1 st Munsif Lower Criminal Court, 1989 CrLJ 2082, R.P. Gupta v. State of M.P., 2007 CrLJ 205, Ajit Kr Chakraborty v. Serampore Municipality, 1989 CrLJ 523, Helen Rubber Industries Kottayam v. State of Kerala, 1973 CrLJ 262. The sum and substance of the contentions of the learned counsel for the petitioner is that after the grant of personal exemption from appearance of the accused, the Magistrate becomes functus officio and cannot withdraw the exemption so granted and that the requirement of bail does not form part of proceedings within the ambit of Section 205 (2) or 317 (1) CrPC.