Crl. Misc. No. M-8776 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-8776 of 2009 Date of decision: March 30, 2009 Satish Kumar Goyal ….. Petitioner Versus Pawan Kumar Goyal ….. Respondent Present: Mr. Sudhir Sharma, Advocate for the petitioner. *** S.S. SARON, J. This petition under Section 482 of the Code of Criminal Procedure (“CrPC” – for short) has been filed for quashing of order dated 20.2.2009 (Annexure P3) passed by the Sub Divisional Judicial Magistrate, Amloh, whereby exemption from personal appearance has been granted to the respondent during the pendency of the case before the learned trial Court. The petitioner filed a complaint against the respondent alleging the commission of offences under Sections 120-A, 191, 192, 193, 199, 200, 415, 499 and 500 read with Section 34 Indian Penal Code (“IPC” – for short) and Section 195(1) CrPC for filing wrong affidavit alleging himself to be the Managing Director of M/s Sona Castings Pvt. Ltd. Against the said complaint and the summoning order, the respondent filed Crl. Misc. No. M-14364 of 2008 in this Court seeking quashing of the complaint and the summoning order. Vide order dated 30.5.2008 (Annexure P1), this Court noticed the contentions of the Crl. Misc. No. M-8776 of 2009 2 respondent that the dispute was between the brothers and the complaint filed by the petitioner was on account of the respondent filing an affidavit in a civil suit filed by him against the petitioner/complainant, wherein the respondent stated that he was Managing Director of M/s. Sona Castings Private Limited. In fact respondent was the Managing Director and he (respondent) along with his brother Subhash Goyal owned 98% of the shares of M/s. Sona Castings Private Limited. The petitioner-complainant and his family members it was contended owned merely 2% of the shares. Notice of motion was issued in the case for 25.8.2008. In the meantime, it was directed that the respondent may move an application seeking exemption from personal appearance before the Court below, which may be granted subject to such terms and conditions as deemed to be fit by it. The respondent accordingly filed an application dated 4.8.2008 (Annexure P2) seeking personal exemption from appearance. The learned Sub Divisional Judicial Magistrate, Amloh vide order dated 20.2.2009 (Annexure-P.3) has granted exemption to the respondent from personal appearance subject to certain conditions as mentioned in the said order dated 20.2.2009 (Annexure P3) passed by the learned Sub-Divisional Judicial Magistrate, Amloh. Learned counsel for the petitioner contends that in the application dated 4.8.2008 (Annexure P2), the respondent did not reproduce the entire order passed by this Court on 30.5.2008 (Annexure P1) and he omitted the word “in the meantime”. Therefore, it is submitted that exemption was to be granted only till the next date of hearing in this Court i.e. till the pendency of the proceedings in this Court. It is also submitted that even during pendency of the application, the respondent did not appear before the learned trial Court for the last four dates that the case was fixed before the learned trial Court. Therefore, the order dated 20.2.2009 (Annexure P3) granting exemption to the petitioner is liable to be quashed. Crl. Misc. No. M-8776 of 2009 3 After giving my thoughtful consideration to the matter, it may be noticed that the order dated 30.5.2008 (Annexure P1) was on record of the Court of learned Sub Divisional Judicial Magistrate, Amloh and it has been so mentioned in the order dated 20.2.2009 (Annexure P3) passed by the learned Magistrate. Therefore, it cannot be said that there was any suppression of material fact or that there was some misrepresentation on the part of the petitioner. Even otherwise, the contention of the learned counsel that the exemption from appearance before the learned trial Court was liable to be granted only till the next date of hearing in this Court is not tenable. A perusal of the order dated 30.5.2008 (Annexure P1) passed in the petition filed by the respondent seeking quashing of the criminal complaint dated 4.8.2007 shows that this Court had issued notice of motion for 25.8.2008 and it was observed that in the meantime, the petitioner may move an application for exemption from personal appearance before the Court below, which may be granted of such terms and conditions deemed to be fit by it. There is no stay involved in the case, which was to be operative till the next date. It was in fact merely an observation that the petitioner in the meantime may apply for seeking personal exemption from appearance before the trial Court which may be granted by the trial Court on terms and conditions to be determined by it. The intent of making observation for grant of exemption was not that it was to be operative during the pendency of the petition but being in the nature of a lesser relief to the main petition is to be construed to mean that the exemption may be granted to the respondent for appearing in the complaint case filed by the petitioner. The other contention of the learned counsel for the petitioner is that the respondent had not appeared on the last four dates before the learned trial Court. It may, however, be noticed that the same was duly considered by the learned trial Magistrate and it was observed that the respondent had not appeared Crl. Misc. No. M-8776 of 2009 4 on 22.12.2008, 23.12.2008, 3.1.2009 and 8.1.2009 nor any application on these dates were filed by the respondent for grant of exemption from appearance. It was observed that the orders passed on 22.12.2008, 23.12.2008 and 3.1.2009 were placed on record in Crl. Misc. No. M-14364 of 2008 i.e. the petition filed by the respondent for seeking quashing of the complaint dated 4.8.2007 and the summoning order dated 5.2.2008 in which the order dated 30.5.2008 (Annexure P1) was passed by this Court. The said orders, it was observed, were placed on record of this Court by way of Crl. Misc. No.658 of 2009. It was observed by the learned trial Magistrate that the case was pending for recording pre-charge evidence of the complainant and the accused (respondent) did not appear on the dates of hearing when his application was fixed for consideration and the counsel was present. Non-appearance of the accused (respondent), it was observed, on the dates cannot be a ground for issuances of non-bailable warrants as the case was pending for 20.2.2009 for leading pre-charge evidence by the complainant. But no evidence of the complainant was present. In the circumstances and in view of the order dated 30.5.2008 (Annexure P1) passed by this Court, the personal exemption from appearance to the respondent was granted. Therefore, the case was pending before the learned trial Magistrate for pre-charge evidence of the complainant/ petitioner and it has been mentioned that though the accused/ respondent did not appear on the dates of hearing when his application was fixed for consideration and the counsel was present, however, the non-appearance of the accused on the dates cannot be a ground for issuance of non-bailable warrants as the case was pending for 20.2.2009 for leading pre-charge evidence by the complainant/petitioner and that no evidence of the complainant was present on the said date. Accordingly, in compliance with the order passed by this Court, the accused-respondent was granted exemption from appearance subject to the condition that he would not dispute his identity and would appear in Court as and Crl. Misc. No. M-8776 of 2009 5 when required by the Court. As such the application filed by the complainant/petitioner for issuance of non-bailable warrants was held to be not maintainable. Keeping in view the fact that the learned Sub Divisional Judicial Magistrate, Amloh has vide order dated 20.2.2009 (Annexure P3) complied with the order dated 30.5.2008 (Annexure P1) passed by this Court, there is no infirmity in the same. Accordingly, the Crl. Misc. petition is dismissed. (S.S. SARON) JUDGE March 30, 2009 amit