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2019 (7) TMI 1005 - HC - Indian LawsDishonor of Cheque - Plea that pleading not guilty was singed by the advocate on behalf of petitioner accused - whether advocate was property instructed - Section 138 of Negotiable Instruments Act, 1881 - repayment of debt - HELD THAT - The impugned order makes it abundantly clear that in case the Advocate is willing to sign on plea in that case only such application/prayer for exemption was granted. If the contention of the petitioner is accepted that the Advocate was not instructed to sign on plea, in that case it was open for the Advocate not to sign on plea. Since the Advocate for the petitioner has signed the plea and pleaded not guilty, it is not open for the petitioner to say that Advocate was not instructed accordingly. The Supreme Court in the case of BHASKAR INDUSTRIES LTD. VERSUS M/S. BHIWANI DENIM APPARELS LTD. ORS. 2001 (8) TMI 1407 - SUPREME COURT has taken a view that 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. Petition dismissed.
Issues Involved:
1. Quashing of the impugned order dated 11.12.2018. 2. Legality of recording the plea by the advocate for the accused. 3. Authority of the Magistrate to order deposit of interim compensation under Section 143A of the Negotiable Instruments Act, 1881. Detailed Analysis: 1. Quashing of the Impugned Order: The petitioner sought to quash the order dated 11.12.2018 passed by the 33rd Metropolitan Magistrate, Ballardpier, Mumbai, which conditionally allowed the petitioner's application for personal exemption. The order required the advocate for the accused to record a plea on behalf of the accused and, if pleading not guilty, mandated the accused to secure bail and deposit 20% of the cheque amount as interim compensation within 60 days. The petitioner argued that the Magistrate erred in passing this order when the petitioner was absent and only an exemption application was filed. The court noted that the advocate was instructed to attend the proceedings and take appropriate steps, which included signing the plea. The Supreme Court in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. & Ors supported the legality of the advocate recording the plea. 2. Legality of Recording the Plea by the Advocate: The petitioner contended that the Magistrate exceeded its powers by directing the advocate to record the plea on behalf of the accused. The court referred to the Supreme Court ruling in Bhaskar Industries Ltd., which allows a magistrate to permit an accused to make the first appearance through counsel and record the plea if the personal appearance of the accused is dispensed with. The court emphasized that the advocate was instructed to take appropriate steps, which included recording the plea. Furthermore, the court highlighted that the advocate did not object to recording the plea, indicating implied authorization by the petitioner. 3. Authority of the Magistrate to Order Deposit of Interim Compensation: The impugned order invoked Section 143A of the Negotiable Instruments Act, 1881, which empowers the Magistrate to order the accused to deposit 20% of the cheque amount as interim compensation when the accused pleads not guilty. The petitioner argued that such an order should not be conditional and should not be passed on an application for personal exemption. The court found that Section 143A does not require a written application by the complainant and can be invoked directly by the Magistrate. The court upheld the Magistrate's authority to pass the order under Section 143A, emphasizing the legislative intent to provide relief to payees of dishonored cheques and expedite the resolution of such cases. Conclusion: The court concluded that the Magistrate was right in passing the impugned order, noting that the petitioner appeared to be attempting to delay the proceedings. The petition was rejected, and the rule was discharged. The judgment reinforced the need for expeditious trials under Section 138 of the Negotiable Instruments Act, in line with the mandate of Section 143 and the Supreme Court's directions in Indian Bank Association & Others v. Union of India & Others.
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