NARENDRA KESHAVJI SHAH Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) The Petitioners invoke inherent powers of this Court under Section 482 of the Code of Criminal Procedure and seek exemption from their personal appearance in the complaint case No.415/1/2000 titled Prakash Kaur v. Everest Construction Company and others.

(2.) According to the Petitioners they are permanent residents of Mumbai. A complaint under Sections 197/198/420/467/468/471/474 of the Indian Penal Code was filed against M/s. Everest Construction Company and its partners on the premise that certain sums of money were paid by the respondent No.2 (complainant in the complaint case) for purchase of flat No.606, 6 th Floor, Resham Towers at Prabha Devi, Bombay in pursuance of an agreement dated 13.10.1981. A civil suit for declaration being Suit No.82/1989 was filed by the complainant on the original side of Delhi High Court which was subsequently transferred to the District Court. According to the allegations made in the complaint the accused persons forged/fabricated/made a false document dated 30.07.1981 and thereby the Petitioners and other accused persons committed various offences under the IPC. It is stated that an application seeking exemption from personal appearance was moved by the accused persons by an order dated 16.08.2012. The exemption from personal appearance in respect of accused Nos. 2, 4 and 10 was granted on the ground that they (accused Nos. 2 and 10) were of advanced age and accused No.4 was not medically fit. The application for exemption from personal appearance in respect of the other accused persons i.e. the Petitioners herein was rejected by the learned Metropolitan Magistrate ("MM") on the ground that they have not been able to make out their case that they are unable to appear before the Court personally either on account of illness or on account of very old age.

(3.) The learned counsel for the Petitioners urges that the complaint was filed in the Court of learned "MM" sometime in the year 2000. All the Petitioners are residents of Mumbai and thus it is not practicable and rather it is very inconvenient to the Petitioners to appear in the Court at Delhi on each and every date of hearing. It is urged that since the Petitioners had undertaken to be represented through their counsel and their identity was not in dispute their request for grant of exemption from personal appearance ought to have been allowed. It is contended that an accused is expected to appear in the Court personally so that the proceedings may be conducted in his presence and no prejudice is caused to him. Once the Petitioners themselves gave an undertaking that they will be represented through their counsel there was no question of prejudice to the Petitioners and they should have been granted exemption from personal appearance. The learned senior counsel for the Petitioners places reliance on judgments of this Court in Chandramauli Prasad and Ors v. State of Delhi (Crl.M.C.No.1303/2008) decided on 3.7.2008 and Geeta Sethi v. the State (CBI),2001 2 AD(Cri) 331and a report of the Supreme Court in S.V.Muzumdar and Ors. v. Gujarat State Fertilizer Co. Ltd. and Anr., 2005 4 SCC 173.