The main legal point established in the judgment is the discretion of the magistrate to dispense with the personal attendance of the accused in summons cases under Section 138 of the NI Act, while ensuring that the exemption from personal appearance is not abused to delay the trial.

ORDER

1. Heard Mr. R.N. Prusty, learned counsel for the Petitioner and Ms. S. Mishra, learned Additional Standing Counsel for State Opposite Party No.1.

2. The present petition has been filed challenging the order dated 26th February, 2022 of the learned S.D.J.M., Jharsuguda wherein the prayer of the Petitioner to dispense with his person attendance under Section 205 of Cr.P.C. has been rejected.

3. The Petitioner is the sole accused in I.C.C. No.147 of 2019 before the learned S.D.J.M., Jharsuguda for alleged commission of offence under Section 138 of the NI Act.

5. The Petitioner upon receipt of summons appeared through his Advocate and filed the application under Section 205 of the Cr.P.C. praying to dispense with his personal attendance and to permit him to be represented through his Advocate on the ground that he is an old man aged about 67 years.

6. His prayer was rejected by the learned S.D.J.M., Jharsuguda on the ground that the amount involved is huge and no cogent ground is there to dispense with his personal attendance.

7. The Hon'ble Supreme Court in the case of Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. and Others, (2001) 7 SCC 401 have observed that in summons case such as one involving offence under Section 138 of N.I. Act, the court may dispense with the personal attendance of the accused either throughout or at any particular stage of the proceedings after taking an undertaking from the accused that he would not dispute his identity and a counsel on his behalf would be present in court and he would have no objection in taking evidence in his absence. The relevant observations are as follows:-

'14. The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administration of criminal justice. For that purpose the proceedings of the court in the case should register progress. Presence of the accused in the court is not for marking his attendance just for the sake of seeing him in the court. It is to enable the court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the court in that particular case.

15. 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.

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17. 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