1 (cri appln nos.4570/09 4567/09, 4701/09, 4702/09) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4570 OF 2009 M/s Silverline Motors Ltd. and another ..... Applicants. V/s HDFC Bank Ltd. and another ..... Respondents. ALONGWITH CRIMINAL APPLICATION NO.4567 OF 2009 Kartik S/o Rajesh Sharma .... Applicant. V/s HDFC Bank Ltd. and another. .... Respondents. ALONGWITH CRIMINAL APPLICATION NO.4701 OF 2009 Rajesh S/o Ramjidas Sharma and others ..... Applicants. V/s HDFC Bank Ltd. and another ..... Respondents. ALONGWITH CRIMINAL APPLICATION NO.4702 OF 2009 Rajesh S/o Ramjidas Sharma and others ..... Applicants. V/s HDFC Bank Ltd. & another ...... Respondents. 2 (cri appln nos.4570/09 4567/09, 4701/09, 4702/09) Mr. Amit Desai, Senior Counsel with Mr. Prakash Naik for the applicants in all the applications. Mr. A.H. Ponda with Ms. Pravina J. Kanani for Respondent No. 1. Mr. A.S. Shitole, APP for the State. CORAM: V. M. KANADE, J. DATE : 13th September, 2010 P.C.:- 1. Heard the learned Senior Counsel appearing on behalf of the applicants and the learned Counsel appearing on behalf of Respondent No.1. 2. Applicants in all these applications are challenging the order of issuance of process by the learned Magistrate. Mr. Amit Desai, the learned Senior Counsel appearing on behalf of the applicants submitted that all the accused are residing outside the jurisdiction of the Trial Court and, yet, no inquiry has been held under section 202 of the Criminal Procedure Code. Secondly, it is submitted that the Trial Court did not have jurisdiction to try and decide the said case since only notice had been issued by the complainant from Mumbai and the rest of the cause of action had arisen out of Mumbai in Simla, Himachal Pradesh. Thirdly, it is submitted that no 3 (cri appln nos.4570/09 4567/09, 4701/09, 4702/09) proper averments have been made in the complaint for the purpose of attracting the vicarious liability under section 141 of the Negotiable Instruments Act. Fourthly, it is submitted that the said cheques had been issued only for the purpose of security and that the complainant was not authorized to deposit the said cheques in their bank and, lastly, it is submitted the affidavit in evidence of the complainant could not be filed by his Power of Attorney. In support of his submission, the learned Senior Counsel for the applicants has relied upon several judgments of this Court and the Apex Court. He also pointed out that the Apex Court had granted stay to the judgment and order passed by this Court in the case of Bansilal S. Kabra vs. Global Trade Finance Ltd. & Anr. He submitted that in view of the order of the Apex court, since the operation of the judgment and order passed by this Court in the said case is stayed, this Court may grant stay to the order of issuance of process. 3. On the other hand, Mr. Ponda, the learned Counsel appearing on behlaf of Respondent No.1 invited my attention to the affidavit in reply filed by Respondent No.1. He submitted that the process was issued against the applicants on 19/10/2006 and in spite of service of summons, applicants did not appear before the Magistrate and, therefore, bailable warrants had to be issued against the applicants and, thereafter, applicants remained present and the Magistrate was pleased to record the plea of the 4 (cri appln nos.4570/09 4567/09, 4701/09, 4702/09) applicants through their advocate. It is submitted that since the plea is recorded, the applicants and others have acquiesced in the commencement of the trial by waiving the objection regarding procedure to be followed by the Magistrate in taking cognizance of the offence and in issuing process. Thereafter, affidavit in lieu of evidence was filed on 20/11/2007. He submitted that, thereafter, the matter was kept for cross-examination of the witness of the complainant. However, eight adjournments were taken by the applicants. He also pointed out that the court had to issue warrants on account of non-appearance of the applicants. He then submitted that so far as question of issuance of cheques is concerned, the same being disputed question, could not be gone into at this stage. 4. The Apex Court has granted stay to the judgment and order passed by this Court in the case of Bansilal S. Kabra vs. Global Trade Finance Ltd. & Anr wherein the question as to whether the said provision under section 202 is mandatory or directory was considered by this Court after taking into consideration the judgments of the Apex Court and this Court observed that the said provision is directory and not mandatory. Be that as it may, the fact remains that, in the present case, it may not be necessary to consider that aspect since the applicants have approached this Court almost two years after the plea was recorded and after commencement of the trial. Applicants took as many as 5 (cri appln nos.4570/09 4567/09, 4701/09, 4702/09) eight dates for cross-examining the complainant’s witness. It is a well settled position in law that after the plea is recorded and the trial is commenced, this Court should not stay the proceedings of the trial court while exercising its jurisdiction under section 482 of the Criminal Procedure Code. Hence, on this ground alone, applications are liable to be dismissed. So far as the question of averment is concerned, sufficient averements have been made in the complaint and apart from stating that the applicants are in- charge of and in control of the day-to-day business, the role of the applicants also has been specifically mentioned in paras 2, 3, 4, 6 and 9 of the Criminal Application No.4570 of 2009. Apart from that, so far as the question of limitation is concerned, apart from issuance of notice from Mumbai, the cheques were also deposited in Mumbai and the complainant also has registered office in Mumbai and, therefore, the Trial Court had jurisdiction to try and decide the case. In view of the above, it is not necessary to refer to various judgments on which reliance is placed by the learned Senior Counsel for the applicants and the Counsel for Respondent No.1. 5. Applications are dismissed. Applicants, however, are exempted from appearing in the Trial Court and their statements under section 313 may also be recorded through their advocate provided they give an undertaking that they shall not question the correctness of the answers given in the said statement. The learned Magistrate may record the 6 (cri appln nos.4570/09 4567/09, 4701/09, 4702/09) statement as per the procedure laid down under section 313 sub-clause (5). Applicants, however, shall cooperate with the learned Magistrate and if the advocate of the applicants does not appear before the learned Magistrate after exemption is granted by this Court then, in that case, appropriate orders may be passed by the learned Magistrate for securing the presence of the applicants. Trial Court shall decide the criminal cases as expeditiously as possible. 6. I am also informed that non-bailable warrants have been issued in Criminal Application No.4570 of 2009. The said non-bailable warrants are cancelled. 7. Criminal Applications are disposed of in the aforesaid terms. (V.M. KANADE, J.) 7 (cri appln nos.4570/09 4567/09, 4701/09, 4702/09)