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THE HIGH COURT OF DELHI AT NEW DELHI

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CRL.M.C.1640/2011

Date of Decision: 27.04.2012

KAJAL SENGUPTA

…… Petitioner

Through:

Mr.Viplav Sharma, Advocate with

Ms.Nilanjana Banerjee, Advocate.

Versus

M/S. AHLCON READY MIX CONCRETE,

DIVISION OF AHLUWALIA CONTRACT (INDIA) LIMITED

…… Respondent

Through:

Mr.Rishi Kapoor, Advocate.

CORAM:

HON’BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1.

The petitioner seeks quashing of the order of the Ld. MM dated

11.02.2011, in CC No. 1448 of 2010 directing him to appear personally

on the next date of hearing.

2.

In the complaint filed by the respondent/complainant against the

petitioner under Section 138, Negotiable Instruments Act (for short the

„Act‟), summons were issued to the petitioner by the learned M.M. vide

his order dated 29.8.2007. The accused person preferred a petition

under Section 482 CrPC in this Court seeking quashing of the complaint

which was dismissed vide its judgment dated 10.02.2009, with an

2012:DHC:2860

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observation that any request for exemption from personal appearance be

made before the concerned Magistrate. The Ld. MM vide order dated

19.05.2009 exempted the petitioner from personal appearance with the

direction that if at any stage of the proceeding, the petitioner is required,

he shall have to appear in person. The complainant/ respondent

company preferred a revision to this Court against the said order of the

Ld. MM granting personal exemption to the petitioner, which was

dismissed by this Court vide order dated 07.01.2010, with the liberty to

move an appropriate application before the Ld. MM for revocation of

personal exemption of the petitioner. Since the exemption from

appearance of the petitioner was continuing, notice under Section 251

CrPC was framed against the petitioner through his counsel. Thereafter,

the Ld. MM vide order dated 11.02.2011 directed the petitioner herein

to personally appear before him for furnishing the bail bond and

disclosing his defense. The petitioner being aggrieved by this order of

the Ld. MM has approached this Court seeking quashing of this order

and to continue to be represented through his counsel, at the trial.

3.

The learned counsel for the petitioner submitted that the petitioner was

granted permanent exemption from personal appearance by the Ld. MM

vide order dated 19.05.2009, subject to the condition that the petitioner

shall appear in person as required by the Court in “any proceeding” in

the case. The requirement of “bail” do not form a part of the proceeding

as contemplated by the Ld. MM. Drawing my attention to Form 45, it

was submitted that the requirement of bail bonds is to ensure the

presence of the accused in Court during trial, which in the present case,

has already been dispensed by the Magistrate vide order dated

19.05.2009. In view of Section 205 CrPC, it is further submitted that,

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grant of bail or execution of bail bonds by the accused is not a sine qua

non for the grant of personal exemption by the Magistrate. It was

further submitted that, in view of the judgment of the Hon‟ble Supreme

Court in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. &

Ors, (2001) 7 SCC 401, the petitioner can be exempted from personal

appearance even for the first appearance, if he is duly represented by his

pleader. Further, even at the stage of the framing of notice under

Section 251 CrPC, the Magistrate is empowered to record the plea of

the accused when his counsel makes such plea on behalf of the accused

in a case where the personal appearance of the accused has been

dispensed with. In support of his contention, the learned counsel relies

upon M/s Chowriappa Construction v. M/s Embassy Contructions &

Development, 2002 CriLJ 3863, V.S. Reddy v. M/s Excel Glasses Ltd,.

2010 CriLJ 4171, S.V. Mazumdar