Landmark Judgment on Personal Appearance of the Accused for the Offence u/s 138 NI Act Amaresh Patel LANDMARK JUDGMENT Thu, Oct 10, 2019, at ,10:21 PM Title of the Case – Personal Appearance of the Accused Name of the case – Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. Crl. A. No. 858 of 2001 (Supreme Court) Date of Judgment – 27th Aug 2001 Judges: Justice K.T. Thomas & Justice K.G. Balakrishnan Subject and sections involved – Section 138 of Negotiable Instruments Act, 1881 Click Here to Get Certification Course on Advance Legal Drafting by Advocates of Supreme Court under Sui Juris Law Firm Issue: Whether personal appearance of the accused is compulsory for the offence committed u/s 138 of NI Act? Fact of the Case: Appellant company filed a criminal complaint before the court of Judicial Magistrate of First Class, Bhopal (M.P.) against 15 accused for the offence under Section 138 of the Negotiable Instruments Act. The first accused in the complaint is a company having its registered office at Bhiwani in Haryana. Second accused is the Managing Director of that company. All the remaining accused are persons said to be associated with the first accused - company and they are all living in far distant places from Bhopal, some are in Haryana while some others are in Chandigarh and some others are in New Delhi. The magistrate took cognizance of the offence and issued summons to the accused. It is not necessary to narrate what happened to the summons issued to the various accused except in the case of the second accused, because this appeal is now restricted to the order concerning the second accused who is arrayed as the second respondent in the special leave petition. On 28.4.2000 the trial magistrate recorded that the notice issued to the second accused (Subhash Sahni) was received back with the report that he was not seen at his residence the address of which was shown on the notice. When other members of the said house refused to accept the notice it was affixed on the house. On the said circumstances the magistrate issued bailable warrants to the accused. Second accused filed an application for exemption from personal appearance. Pending the same, the magistrate ordered him to be released on bail if arrested and directed him to be present in the court for the purpose of furnishing security by executing a bond for Rs.5,000/-. Click Here to Get All Important Judgment of the Month Ratio of the Case: The Supreme Court held that personal appearance for the matter concerned with section 138 of NI Act is not compulsory. It observes that these are days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of inter-State transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings. Section 251 is the commencing provision in Chapter XX of the Code which deals with trial of summons cases by magistrates. It enjoins on the court to ask the accused whether he pleads guilty when the accused appears or is brought before the magistrate. The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205(1) of the Code which says that whenever a magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. Click Here to Get Legal Magazine with Important Judgments, Legal Updates, and much More