IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1373 of 2008 ARVIND KUMAR Versus THE STATE OF BIHAR & ANR With Cr.Misc. No.1393 of 2008 RAJAN NANDA Versus THE STATE OF BIHAR & ANR In both cases For the petitioner : M/s Rajesh Kumar Singh Rana Pratap Singh For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : None ----------- 3 27.11.2008 Both these cases though heard individually are being disposed of by this common order as they arise out of the same Complaint Case No. 3660(C) of 2005 and is directed against the orders passed on different dates therein by the learned Sub Divisional Judicial Magistrate, Patna, whereby he has rejected their petition filed under section 205 Cr.P.C. for exemption of personal appearance as also the individual orders passed by the learned Sessions Judge, Patna in Cr. Revisions preferred against the orders of rejection. Whereas in Cr. Misc. No. 1373 of 2008 the petition under section 205 Cr.P.C. was rejected on 14.8.2008 and the Cr. Revision No. 908 of 2006 preferred against the said order was dismissed on 27.8.2007, in Cr. Misc. No. 1393 of 2008 the petition under section 205 Cr.P.C. was rejected vide order dated 8.8.2006 and the Cr. Revision No. 912 of 2006 preferred against the order of rejection was dismissed on 27.7.2007. - 2 - Arvind Kumar, the petitioner, of Cr. Misc. No. 1373 of 2008 is the Manager (Accounts) of Escorts Finance Limited (hereinafter referred to as “the Company”) and not the Managing Director thereof as claimed in the complaint petition and Rajan Nanda, the petitioner of Cr. Misc. No. 1393 of 2008 is the Chairman of the said Company and they have been arrayed as accused in the said complaint case. The prosecution case in brief as culled out from the complaint petition is that the complainant impleaded in both cases as O.P. No. 2 , had deposited a sum of Rs. 63,000/- in the Cumulative Deposit Scheme for 12 months 1 day fetching an interest of 8.5% per annum for which three certificates were issued to the complainant. It is said that since the complainant was in need of money she claimed to have approached the various officials of the Company for pre-mature withdrawal of money but was not allowed to contact the petitioners. It has been alleged that the officials of the Company have denied the complainant pre-mature withdrawal of money for which she sent legal notice which did not evince any interest of the petitioners. The submissions advanced by the learned counsel for the petitioners in both cases is that the petitioners are in no way connected with the Cumulative Deposit Scheme prescribed by the complainant and they being at the helms of the affair of the Company were required to travel frequently to various places and their repeated appearance in the Court would result in undue harassment. - 3 - Assailing the impugned order passed by the learned Magistrate, it was sought to be submitted that the reasons assigned by the learned Magistrate for rejecting the petition under section 205 Cr.P.C. was neither warranted nor tenable and the Revisional Court had followed suit by rejecting the revision. What further weighed with the Court was that the offence of sections 406, 420 and 120B I.P.C. whereunder cognizance has been taken were non bailable and that they had cheated the complainant by illegally retaining the maturity payment of Cumulative Deposit Scheme and have misappropriated public money. The well settled law as it now stands is that persons who have not indulged in any act in their individual capacity and when the agreement was between the Company and the complainant and where the petitioners being busy men are required to undertake frequent travels for the purposes of propagating their business, the Court should be liberal in granting exemption under section 205 Cr.P.C. The exercise of power under section 205 Cr.P.C. is discretionary and is to be considered in a reasonable manner and no hard and fast rule could be laid down. It has also been observed that Court should be liberal in granting exemption of personal appearance except where serious issues or the allegation of moral turpitude are involved. Nature of allegation, conduct of accused inconvenience in personal appearance are the relevant consideration for deciding the question of exemption of personal appearance and such permission can be granted even after issuance - 4 - of warrant. In the instant cases admittedly the dispute is in the nature of business dispute and such offences could not be categorized as a serious offence in which exercise of power under section 205 Cr.P.C. would be definitely improper. Asking the petitioners to be personally present on each and every date would amount to inflicting him with a punishment before the trial can be concluded. The discretion under section 205 Cr.P.C. is to be exercised judiciously and judicially and not in an arbitrary , fanciful or whimsical manner. The petitioners have given an undertaking to the effect that they shall present themselves in Court as and when directed to do so by the Court. In the circumstances aforesaid rejection of the petition under section 205 Cr.P.C. was not warranted. Accordingly both the applications are allowed and in each of the cases the impugned order of the Magistrate as also the Revisional Court are hereby set aside. Spd/- (Abhijit Sinha, J.)