IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1206 of 2008 1. Jainuddin Taiyebally Thanewala @ Zaimuddin Taiyebally Thanewala, Son of late Taiyebally Thanewal, Chairman, Thanewala Group of Companies. 2. Hakim Thanewala, Son of late Md. Rasulji Thanewala, Managing Director, Persona Cosmetics. Both residents of 23/24, Rajdeep Society, Opposite I.T. Office, Nanpura, P.S. West Mumbai, City and Town Mumbai (Maharashtra). ……Petitioners. Versus 1. State of Bihar. 2. Rajesh Kumar Dokania, son of Suraj Dokania, Proprietor of M/s Rajesh Marketing, Savitri Complex, Akharaghat Road, Opposite Krishna Talkies, Akharaghat Road, P.S. Town, District-Muzaffarpur (Informant). ….Opposite Parties. ----------- For the Petitioner : Mr. Ganesh Pd. Singh, Sr. Adv. Mr. Manish Kumar, Adv. For the State : Mr. I.B. Pandey, APP For the O.P. No. 2 : Mr. K.N. Diwakar, Adv. ----------- 05. 27.03.2009 Heard. The instant revision application is directed against the order dated 01.09.2008 passed by the learned Judicial Magistrate, 1st Class, Muzaffarpur in Complaint Case No. 1823 of 2007/Tr. No. 2244 of 2008, whereby the learned Magistrate had rejected the application under Section 205 Cr.P.C. The prosecution case in short is that the accused persons cheated the complainant for a sum of Rs. 5,40,896/-. Learned counsel for the petitioner submits that even assuming the allegation be true, the matter is of civil nature. It is further submitted that signatory to the agreement namely accused no. 3, has left the company long time back. - 2 - Counsel submits that learned trial court rejected the application of the petitioners on the ground that they are not of old age. Furthermore the Court observed that the name given in passport does not fully tally with name of petitioner No. 1. Learned counsel submits that petitioner under Section 205 ought to have been allowed as both are residents of far distant place and will face undue hardship in traveling all the way to Patna to attend the Court on each & every date. He submits that Petitioner No. 1 is Chairman of Thanewala group of Companies and Petitioner No. 2 is M.D. of Persona Cosmetics. It is further submitted that it would appear from the agreement that the dispute if any was subject to arbitration. Learned counsel submits that there is no material ambiguity in the name of petitioner no. 1 recorded in the passport. The ambiguity is only to the extent that the surname ‘Thanewala’ is not mentioned whereas all the other details would show that the passport is of petitioner no. 1. Learned counsel for the opposite party submits that petitioner no. 2 is aged about forty years and he can easily attend the court proceedings. Learned counsel for the petitioners in support of his submission has relied upon the following decisions:- (1) Ajay Kumar Sharma Vs. The State of - 3 - Bihar & Ors. reported in 2005(2) PLJR 505. (2) Dr. Prem Agrawal Vs. The State of Bihar & Anr. reported in 2002(3) PLJR 583. (3) Jayant Dang & Prabhat Ranjan Vs. The State of Bihar & Anr. reported in 2004 (4) PLJR 25. He submits that the case would not come in the category of serious cases like rape, murder, dacoity and one involving moral turpitude. Furthermore petitioner will not dispute the evidence recorded in their absence. It is further submitted that their lawyer would attend the case regularly and the petitioners undertake that they would deposit a cash amount of Rs. 25,000/- each in the court below by way of surety and undertake to be present as and when required by Trial Court. The petitioners are resident of Mumbai, a far off place and are not signatory to the agreement and also are depositing a sum of Rs. 25,000/- each by way of surety. They undertake that they will remain physically present as and when required by the trial court. In the instant case summons have been issued at the first instance. In view of nature of allegations and considering the totality of circumstances, the application under Section 205 - 4 - Cr.P.C. is allowed and the order of learned Magistrate rejecting the same is set aside. The petitioners would deposit the aforesaid amount in learned trial court within one month from today. Further the petitioners would appear in the court below as and when required and lawyer would regularly represent them and will not take unnecessary adjournments. In case if any of the conditions are violated this order under Section 205 Cr.P.C. would stand withdrawn. The learned Magistrate would try to conclude the trial within one year from the date of receipt copy of this order. Vikash/- (Samarendra Pratap Singh, J.)