Point of law: Cognizance of offence - power under Section 205 of Cr.P.C., can be exercised when the Magistrate has issued summons and not a non-bailable warrant. Once the non-bailable warrant was issued, the proper procedure was to appear before the Court, seek recalling of that warrant and bail in the matter. Without doing that, permanent exemption was sought.

ORDER :

Whether the order of the Trial Court granting permanent exemption to the respondent from appearance before the Court in C.C.No.19587/2016 amounts to abuse of the process of the Court?” is the question involved in this case.

2. On the basis of the complaint filed by the petitioner under Section 200 of Cr.P.C. to prosecute the respondent for the offences punishable under Sections 419, 420 and 426 of IPC, the Trial Court took cognizance and registered the case in C.C.No.19587/2016.

3. It was alleged that the respondent availed loan of Rs.25,00,000/ from the petitioner for her education and towards repayment of the said loan, she issued several cheques. It was further alleged that amongst them, cheque No.000022 dated 03.03.2016 for Rs.2,50,000/-was drawn on H.D.F.C. Bank, Banashankari Branch, Bengaluru.

4. When presented, the said cheque was returned dishonoured with the endorsement “drawer’s signature differs”. The petitioner alleged that having availed the loan, to cheat her the respondent has deliberately signed in different mode than her regular signature leading to the dishonour of the cheque.

5. The Trial Court could not secure the respondent on summons, therefore issued non-bailable warrant against her. On 31.03.2018, an advocate filed memorandum of appearance before the Trial Court for respondent along with the application under Section 205 of Cr.P.C., seeking permanent exemption from appearance in the case on the ground that she is employed in USA and traveling from USA to Bengaluru causes problems to her financially and employment wise.

6. The petitioner filed statement of objections and opposed the said application. The Trial Court, by the impugned order dated 19.07.2018 allowed the said application relying on the judgment of the Hon’ble Supreme Court in Usha. K. Pillai vs. V.S.Raji.K. [AIR 1993 SC 2090] and accepting the grounds stated by the respondents.

7. Sri. J.S.Halashetti, learned counsel for the petitioner seeks to assail the impugned order of the Trial Court on the ground that the judgment relied by the Trial Court was rendered with regard to the examination of the accused under Section 313 of Cr.P.C., and there also it was held that the such exemption can be granted only in the summons cases. He further submits that the Trial Court failed to note that the respondent without filing any application for recalling the non-bailable warrant, without seeking bail sought omnibus exemption and that was outrightly granted by the Trial Court.

8. Per contra, Sri. S.Balakrishnan learned counsel appearing for the respondent submits that Section 205 of Cr.P.C., applies to the warrant cases also. He further submits that because of her stay in foreign country, respondent was not able to appear before the Trial Court and she did not dispute her identity. He further submits that in similar circumstances, the Hon’ble Supreme Court upheld order granting permanent exemption under Section 205 of Cr.P.C., therefore, there is no error in the order of the Trial Court.

9. In support of his contention, he places reliance on the following judgments:

(i) Bhaskar Industries Ltd. vs. Bhiwani Denim and Apparels Ltd. and Ors., (2001) 7 SCC 401

(ii) State By Bangarpet Police vs. Ambati Murali Mohan Rao and Another, ILR 1999 Kar. 1676

(iii) Puneet Dalmia vs. Central Bureau of Investigation, Hyderabad, (2020) 12 SCC 695

(iv) Sri Rameshwar Yadav and Ors. vs. The State of Bihar and Anr., (2018) 4 SCC 608

10. Out of the offences alleged against the petitioner, the offence under Section 420 IPC was the major offence which carries imprisonment upto seven years and fine. Therefore, the case was a warrant case involving a cognizable offence.

11. The summons in the case could not be served and indisputably non-bailable warrant was issued against the petitioner. Not even vakalat was filed on behalf of the respondent. She neither filed any application to recall the non-bailable warrant nor for grant of bail though non-bailable warrant was issued against her. She