1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.3651 OF 2005 M/s. Dee Pharma Limited & Anr. ...Applicants. v. Krishna Texport Industries Ltd. ...Respondents. Mr.Neeraj Sing, adv. For the Applicants. Mr.Yashpal thakur i/by M/s.Paras Kuhad and Asso., adv. For the Respondent No.1. CORAM : J.H. BHATIA, J. DATED : JUNE 9, 2010 P.C. 1 Heard the learned counsel for the parties. Respondents filed complaint under Section 138 read with Section 142 of the Negotiable Instruments Act against the present applicants. Applicants did not appear and NBW were issued against them. As NBW were not executed, proclamation was also issued against the accused persons. On behalf of the applicants, an advocate appeared before the trial Court, ie., 13th Court of Metropolitan Magistrate, Dadar and made an application seeking withdrawal of the proclamation, cancellation of NBW and for grant of exemption from personal appearance of the accused persons. Application was opposed. The learned Metropolitan Magistrate rejected application on the ground that when the NBW and proclamation were 2 pending, warrant and the proclamation could not be recalled or cancelled unless the accused persons appeared. The learned Magistrate refused to grant exemption from the personal appearance on the ground that the accused had never appeared and NBW were pending for execution. That order dated 17.3.2005 has been challenged in the present application under Section 482 of the Cr.P.C. 2 The learned counsel for the applicants contended that the applicant no.1/accused no.1 is a company registered under the Companies Act and the accused nos.2, 3 and 4, who are the applicant nos.2, 3 and 4 are the directors of the company . According to him, these directors do not have any personal liability in the matter, therefore, it is not necessary for them to appear before the Court personally and they could appear through an advocate also. He further contended that the summons had not been served on them when the warrants were issued. The learned counsel in support of his contention placed reliance upon the provisions of Section 205 and 317 of the Cr.P.C. Section 204(1) provides that if in the opinion of the Magistrate taking congnisance of an offence , there is sufficient ground for proceeding and the case appears to be a summons-case, he shall issue summons for the attendance of the Accused. Before the Amendment of 2002 in Section 3 138 of the Negotiable Instruments Act, the offence under Section 138 was punishable with imprisonment for term which could extend to one year or with fine or both, therefore, offence was summons-case. In view of this , when the summons is issued , it is for the attendance of the case. Section 205 reads as follows: “205. Magistrate may dispense with personal attendance of accused: (1)whenever a Magistrate issues a summons, he may, if he sees reasons 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 matter hereinbefore provided.” In view of the Sub-section (1) of Section 205 whenever Magistrate issues summons, he may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. It means ever at the time of issuing summons itself, Magistrate may direct that the personal attendance of the accused shall be dispensed with and he could appear through lawyer. In the present case, it is nobody's case that while issuing summons, the Magistrate had directed 4 that the accused could appear through advocate and the personal attendance of the accused would be dispensed with. In fact, according to the accused/applicants, no summons was issued or served. However, there is no material to show that the summons was not issued for the attendance of the case and that at the first instance, Magistrate had issued NBW against the accused. The Magistrate may also grant exemption from personal attendance to the accused at any stage even after he has appeared before the Court, if he sees reasons so to do. Sub-section (2) of Section 205 empowers Magistrate inquiring into or trying the case may, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner provided by Cr.P.C. It means if personal attendance of the accused is dispensed with, at any stage Magistrate may also direct personal attendance of the accused and the exemption granted may be withdrawn. Admittedly, in the present case, NBWs have been issued. As the NBWs could not be executed , proclamation was also issued. Proclamation as well as NBWs were still pending, when an application was moved by the advocate on behalf of the accused before the learned Magistrate to recall the proclamation and to cancel NBW and also to grant exemption from personal attendance before the Court. The learned Magistrate 5 refused to grant application mainly on the ground that when the NBW was issued and was pending against the accused, personal attendance of the accused before the Court was necessary and it could not be cancelled merely because some advocate had appeared and made an application for cancellation of NBW. No valid ground was available to recall the proclamation or to cancel NBW issued against the accused particularly when accused had never shown intention to appear before the Court. They wanted permanent exemption. Even it does not appear from the record that advocate, who had appeared and made an application before the learned Magistrate for grant of exemption from the personal attendance, had given any assurance to the Court that the accused would attend the Court on the next date or on any particular date. In such circumstances, it would be mockery of the process of the Court if the accused persons remained absent for years together and in spite of knowing that NBWs as well as proclamations against them had been issued, they refused to appear and made application for exemption from the personal attendance through an advocate without giving assurance to appear before the Court on a particular date or as and when the Court would require. 3 Under Section 317 of the Cr.P.C. at any stage of an enquiry 6 or trial if the judge or the Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, the judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such enquiry or trial in his absence, and may, at any subsequent stage of the proceeding direct the personal attendance of such accused. In the present case, the accused persons had never appeared before the Court and the application on which the impugned order was passed was made about 7 or 8 years after the process was issued against the accused. Section 317 could be invoked for sufficient reasons at the stage of enquiry or trial. That stage had not reached because accused had never appeared before the Court. 4 The learned counsel for the applicants contended that some settlement had taken place between the complainant-company and the accused no.1-Company and as per that settlement on payment of Rs. 4,50,000/- and on transfer of certain documents in favour of the complainant, all the cheques lying with the complainant would be returned and notice of survey would be issued. The learned counsel also contended that one Devendra Kumar, who is authorised signatory of the complainant/company has also sworn in an affidavit to the effect that the 7 amount was paid by DD and that documents were also received by the company and the complainant would withdraw all the civil court cases including the case under Section 138 of the Negotiable Instruments Act pending before the Additional Chief Metropolitan Magistrate, Dadar as well as Girgaon, Mumbai. Copies of such documents are produced with this petition. The learned counsel for the respondent/company denies genuineness of these documents and also contended that the genuineness or otherwise all these documents will have to be looked into before the trial Court and he contended that when such documents are produced with petition under Section 482 of the Cr.P.C. , this Court is not expected to look into such documents or genuineness of such is not established. He finds support to this proposition from State of Madhya Pradesh vs. Avadh Kishore Gupta and Ors. MANU/SC/0946/2003 wherein the Supreme Court observed as follows in paragraph 13: “13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed, at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and 8 documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not, for convicting the accused. In Chand Dhawan (Smt.) v. Jawahar Lal and Ors. MANU/SC/0254/1992 : 1992 CriLJ1956, it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case at hand is considered in the light of principles of law highlighted the inevitable conclusion is that the High Court was not justified in quashing the investigation and proceedings in the connected case (Crime No. 116/94) registered by the Special Police Establishment, Lokayukt, Gwalior. We set aside the impugned judgment. The State shall be at liberty to proceed, in the matter further.” When the genuineness of these documents is not admitted and it needs to be proved, that can be done only before the trial Court and not before this Court. Therefore, in my considered opinion, documents relied upon by the accused/applicants can not be looked into in the present application under Section 482. Merely on the basis of such disputed documents, this Court can not come to conclusion that the accused had no liability towards the complainant or that there was an agreement between the parties that the complainant would withdraw the cases under 9 Section 138 of the Negotiable Instruments Act. Though these documents can be looked into by the trial Court and the trial Court may so call upon parties to produce original documents in support of or against the said contention. 5 The learned counsel for the applicants contended that proclamation could not have been issued when the warrants are not yet executed. Infact, under Section 82 of the Cr.P.C. a proclamation can be issued if any Court has reason to believe that any person against whom a warrant has been issued has absconded or is concealing himself so that such warrant can not be executed. In the present case, NBWs were issued and they have not been executed. There was reason for the trial Court to presume that either the accused were absconding or concealing themselves so that warrants could not be executed. Therefore, there was justification to issue proclamation under Section 82. 6 It is material to note that even after being aware about the proclamation under Section 82, accused persons did not bother to appear before the Court and only made an application through an advocate for recalling the said proclamation and warrants and to grant exemption from the personal attendance. When the process is issued under Section 10 204, accused is expected to appear before the Court and if he so appears, he can make an application for grant of bail as per the provisions of Sections 436 or 437 of the Cr.P.C. If the bail is granted, accused may be called upon to execute bond and furnish surety bonds which gives guarantee to the Court that as and when accused would be required , he would appear before the Court and if he fails to appear security bonds may be forfeited and the bond amount may be recovered from the sureties. Had the accused appeared before the Court and made such application for cancellation of warrant and proclamation and further to grant exemption from further attendance, such application could be considered. Taking into consideration all the facts and circumstances of the case when the accused failed to appear and show their inclination to appear, the learned Magistrate was justified in passing the impugned order and rejecting the application. 7 It may be made clear that as far as accused no.1 concerned, it is company, it may be allowed to appear through an advocate. Accused nos.2 to 4 are not company but the directors of the company and they can appear in person before the Court . Therefore, their appearance 11 before the Court is necessary. 8 For the aforesaid reasons, application stands dismissed. (J.H. BHATIA,J.)