1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1478 OF 2009 Suresh Balkishan Jajra .. Applicant Vs The State of Maharashtra and Another .. Respondents Shri. Shirish Gupte, Sr. Advocate with Mr. Ganesh Gote for the applicant Mr. Deepak N. Salvi for respondent no. 2 Ms. A.T. Jhaveri, APP for the State CORAM : D.G. KARNIK, J. DATE : 17th November, 2009 P.C.: 1. Heard. 2. By this application under Section 482 of the Code of Criminal Procedure, the applicant prays that the complaint no. 0104212/CS/2008 filed in Court of Chief Metropolitan Magistrate, Esplanade, Mumbai by Mr. J.B. Shirsat, Senior Intelligence Officer, Directorate General of Central Excise Intelligence, Mumbai, be quashed. RMA appln1478-09.sxw 2 3. The complainant is a public servant and is an officer empowered under Section 14 of the Central Excise Act, 1944 to issue summonses. The complainant issued summons to the applicant to appear before him on 05th March, 2008. The complainant did not comply but produced a medical certificate purportedly issued by Miss. Heena Bhatia, medical officer, in-charge of Ruby Hospital, Bhandup. Thereafter, the complainant issued summonses to the accused on several occasions and on each occasions, the applicant remained absent on one or other ground. In all six summonses were issued to him but on every occasions, he remained absent. The complainant, therefore filed a complaint under Section 174 of Indian Penal Code read with Section 14 of the Central Excise Act, 1944 against the applicant. By an order dated 19th December, 2008, the learned Magistrate issued process under Section 174 of Indian Penal Code. Thereupon, the applicant has approached this court for quashing the order of issuance of process. 4. Mr. Gupte, the learned senior advocate appearing for the applicant submitted that the applicant had reasonable cause for not appearing in pursuance of the summonses on each of the occasions RMA appln1478-09.sxw 3 and therefore, no offence under Section 174 of Indian Penal Code was made out. He firstly, invited my attention to a copy of letter written by the applicant to the Senior Police Inspector, Naupada Police Station, Thane on 19th February, 2008. In the said letter, it was alleged that on 17th February, 2008, the applicant was accosted by two officers (who were not named in the letter) who after forcibly taking search of his house took him to their office at Ballard Estate and took signatures on some blank papers. In fact, the statement of the applicant was recorded on 18th February, 2008 by the Excise Officers which was retracted by the applicant on the very day and the aforementioned letter was written to the Police Inspector on 19th February, 2008. Mr. Gupte, the learned senior advocate submitted that since the applicant was forced to sign blank papers, apprehending that the excise offiers would employ third degree methods, he did not respond to the summonses. 5. Secondly, he submitted that in any event, the applicant was ill and advised rest as per medical certificate dated 1st March, 2008. On 5th March, 2008, when he was summoned to appear, he had RMA appln1478-09.sxw 4 produced the medical certificate dated 1st March, 2008 issued by the Ruby Hospital. The applicant, therefore had a reasonable cause for remaining absent on 5th March, 2008. The validity and genuineness of the medical certificate has been doubted by the complainant. The owner of Ruby Hospital, Mr. Shailesh Bhatia who is present in the court states that the medical certificate was issued by the hospital. The issue of validity and genuineness of the medical certificate, therefore, does not survive and I would proceed on the assumption that on account of illness, the applicant had a reasonable cause to remain absent on 5th March, 2008. But the matter does not end here. The applicant had remained absent in all on six dates on which he was summoned. Mr. Gupte, the learned counsel for the applicant submitted that the applicant was on and of out of Mumbai between 14th March, 2008 and 7th April, 2008 for business purposes and he had informed the complainant about his absence and therefore, he has reasonable cause for absence between 14th March, 2008 and 7th April, 2008. The applicant remained absent on six dates i.e 5th March 2008, 24th March 2008, 28th March, 2008, 7th April 2008, 28th April 2008 and 02nd July RMA appln1478-09.sxw 5 2008. No explanation whatsoever was offered as to the absence of the applicant on 28th April 2008 and 2nd July, 2008. Even assuming that the applicant had a reasonable cause to remain absent during the period from14th March 2008 to 7th April, 2008, at least on two occasions, the applicant remained absent without any cause. Thus, prima facie, ingredients of commission of offence under Section 174 of Indian Penal Code are established. 6. Normally, while considering the issuance of process, the Magistrate is required to look into the allegations made in the complaint to find out whether the allegations, if proved, show commission of an offense. At that stage, the magistrate is not concerned with the defence of the accused. Therefore, it was not necessary for the magistrate nor for me to consider whether there was a reasonable cause for the applicant to remain absent between 14th March, 2008 to 7th April, 2008. However, even assuming that the applicant had any cause, no cause whatsoever has made out for his absence on 28th April, 2008 and 02nd July, 2008. In the circumstances, the application deserved to be dismissed. 7. At this stage, the learned counsel for the applicant submitted that RMA appln1478-09.sxw 6 the applicant was willing to attend the Central Excise Office and therefore the complaint be quashed. In my view, if an offence has been committed, subsequent offer to obey the summons would not wash away the offence. At the most, it may be a circumstance which the applicant can plead for consideration in the matter of imposition of sentence, if convicted. After having dodged the summonses successfully on each and every occasions, now the applicant's willingness to comply with the summons would not be a ground for quashing the impugned order. There is no merit in the petition which is hereby dismissed. (D.G. KARNIK, J.) RMA appln1478-09.sxw 7 RMA appln1478-09.sxw