- (1.) Cognizance against the petitioner accused Sudip B. Dutta was taken under Section 138 of the N.I. Act, 1881 by the learned Judicial Magistrate, First Class, Barr District Pali by order dated 4.10.2007 in Criminal Case No. 534/2007 P.G. Foils Limited v. M/s. Sushmit Packaging & Ors. The order dated 4.10.2007 of the lower court was challenged by the accused-petitioner Sudip B. Dutta but his petition under Section 482, Cr.P.C. in this regard was dismissed on 22.9.2011 by a Co-ordinate Bench of this Court. Copy of the order dated 22.9.2011 which was passed in S.B. Cr. Misc. Petition No. 1371/2008 has been filed by the parties in this case. When the petitioner was not able to get the proceedings of the lower court quashed, then he has filed another petition under Section 482, Cr.P.C. before this Court and this time he has challenged the order dated 12.1.2012 passed by the learned Judicial Magistrate, Barr in the same case whereby the learned lower court has refused to grant exemption from personal appearance to accused-petitioner Sudip B. Dutta at the stage of substance of accusation.
(2.) It is pertinent to note here that the accused-petitioner Sudip B. Dutta has perhaps not submitted bail bonds also in the lower Court for his personal appearance. He has argued that bail bonds for personal appearance in a case under Section 138 of the N.I. Act, 1881 are not necessary to be taken by the lower court because at the stage of charge as well as at the state of Section 313, Cr.P.C., the accused may give his appearance through his Advocate.
(3.) I have heard both the parties on the point in issue. Following rulings have been submitted by the accused-petitioner:-- (1) Gajanand Goyal and others v. Asiya Begum, 2005 12 SCC 331. In this case, it was held that the trial court may dispense with the personal attendance of the accused in a case under Section 138 of the N.I. Act, 1881 but if any attempt was made to prolong the proceeding by taking advantage of exemption then the trial court will be free to pass necessary coercive orders. (2) Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. and others, 2001 7 SCC 401. In this case, Hon'ble the Supreme Court has held that discretion to dispense with the personal attendance of the accused should be exercised in rare cases where due to a distance or any physical disability or any other good reason or in the interests of justice, the accused is unable to attend to court personally. It was also held that when counsel of the accused-petitioner does not appear or co-operate then personal attendance of the accused may be made compulsory. In this case, it was also held that if attendance of accused is dispensed with then the Magistrate can record plea of the accused through Advocate also. (3) Mangaroo v. The State of U.P., 1992 CrLJ 1397. In this case, Hon'ble Allahabad High Court has held that in less serious criminal cases, exemption may be granted to accused from personal appearance. (4) Dhiria and others v. Jainarain and another, 1970 AIR(Raj) 102 In this case also, liberal exemption from personal appearance of accused in less serious criminal case was advised for subordinate courts.;