SATISH KUMAR MITTAL, J. - (1.) SMT . Anita Nanda, who is facing trial before Sub- Divisional Judicial Magistrate, Samrala, in complaint No. 30/2 dated 14.5.2001, filed by respondent No. 2 under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act'), has filed this petition under Section 482 of the Code of Criminal Procedure for setting aside the order dated 17.9.2005, passed by the trial Court, whereby an application filed by the petitioner for exemption from personal appearance has been dismissed.
(2.) I have heard the arguments of learned counsel for the parties and have gone through the impugned order. Counsel for the petitioner submits that the aforesaid complaint filed by respondent No. 2 against the petitioner is pending before the trial Court since 2001 and the petitioner is continuously appearing in the aforesaid case. Counsel contends that the petitioner is a house hold lady having two school going children. She has also to look after her grandmother, who is about 90 years of age, suffering from many diseases, and is unable to move about. In view of these facts, the petitioner filed an application for her exemption from personal appearance before the trial Court. Counsel for the petitioner submitted that the above said application of the petitioner was dismissed by the trial Court arbitrarily, without properly considering the case of the petitioner in the light of the law laid down by the Supreme Court in M/s. Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd., 2001(4) RCR(Criminal) 137. While referring to the decision of the Andhra Pradesh High Court in Dasari House of Publications Pvt. Ltd. v. M/s. Apple Credit Corporation Ltd., Secunderabad and another, 2003(1) RCR(Criminal) 368, counsel for the petitioner contends that in case of a female accused involved in a case under Section 138 of the Act, exemption from personal appearance should be granted.
(3.) A perusal of the impugned order shows that the trial Court, without giving any reason, has dismissed application of the petitioner only by observing that it is not a fit case to dispense with personal appearance of accused. In my opinion, the order passed by the trial Court is not sustainable. Section 205 of the Code of Criminal Procedure provides that whenever 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. No further guidelines are mentioned under Section 205 of the Code. It is left to the discretion of the Magistrate to exercise his discretion judicially after recording reasons. The Supreme Court in M/s. Bhaskar Industries' case (supra) has observed as under :- "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." ;