9911796707
TMI Blog2019 (7) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... Ballardpier, Mumbai under the Negotiable Instruments Act. The Respondent No. 1 is the original complainant in C.C. No. 8349/SS/2018 pending before the learned Metropolitan Magistrate, Mumbai wherein the petitioner stands arraigned as accused. The complaint proceedings alleged commission of offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act"). It is the case of the petitioner that, it is alleged in the complaint that in the year 2013, the petitioner alongwith Sidhartha Buildhome Private Limited as promoters of one CSN Estates Private Limited approached the complainant and represented to the complainant that the accused alongwith CSN were engaged in the business of real estate development and vide share subscription cum shareholders agreement dated 09.05.2012 executed between CSN, Tata Housing Development and Lemon Tree Land and Developer Private Limited ("SPV"), CSN and Tata Housing have entered into a joint Venture for development of a residential project on a parcel of land admeasuring approximately 24.695 acres, situated at Gurgaon. 4. It is also alleged in the complaint that, further to the aforesaid representations made, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om Gurgaon to Mumbai and attend the Trial Court on 11.12.2018 but instructed an advocate to attend the proceedings and take appropriate steps in the interest of the petitioner. The advocate of the petitioner appeared before the Trial Court on 11.12.2018 and presented an application for personal exemption of the petitioner. The learned Magistrate passed a conditional order thereby allowing the exemption application on a condition that the Advocate for the accused shall record plea on behalf of the accused and if the advocate is pleading not guilty then the accused shall secure his presence for bail and deposit 20% of the cheque amount as interim compensation within 60 days from the date of the order. It is further stated that, the impugned order dated 11.12.2018 is passed by the learned Magistrate in exercise of his powers under Section 143A of the said Act, inserted by the Negotiable Instruments (Amendment) Act, 2018. The section 143A of the said Act empowers the Magistrate to order the accused to deposit 20% of the cheque amount as interim compensation in a summons case when the accused pleads not guilty to the accusations made in the complaint. It is pertinent to note that the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh Deswal & Ors V. Virender Gandhi (2019 SCC Online SC 739). b. Recognising the need for speedy resolution of trials for dishonour of cheques, the legilature introduced Section 143 (3) on 06 February 2003, which provided as under: "143 Power of court to try cases summarily" (1) ..... (2).... (3) Every trial under this Section shall be conducted as expeditiously as possible and an endavour shall be made to conclude the trial within six months from the date of filing of the complaint." B. Recording of plea by the advocate for the accused. a. At paragraph 9 of the captioned Writ Petition the Petitioner has made the following statement on oath, "...The petitioner, owing to unavailability of confirmed travel ticket was unable to travel from Gurgaon to Mumbai and attend the Ld. Trial Court on 11.12.2018 but instructed an advocate to attend the proceedings and take appropriate steps in the interest of the Petitioner... " (Emphasis Supplied). b. In a Summons case, all that can be done upon receipt of summons is to either plead guilty or not guilty. Thus, by pleading not guilty the advocate for the Petitioner/Accused has taken appropriate steps in the interest of the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attend the proceedings and take appropriate steps in the interest of the petitioner. It is the contention of the petitioner that only application for exemption was filed, however, the Trial Court allowed the said application subject to Advocate of the accused to sign on plea. According to the petitioner, the Court of Metropolitan Magistrate ought to have allowed the said application or rejected the same, however, there was no occasion for allowing the said application subject to Advocate appearing for accused to sign on plea. In this respect it is necessary to make reference to pleadings in Para No. 9 of the petition wherein it is stated by the petitioner as under: "9. The petitioner states that summons was issued to the Accused returnable on 11.12.2018. The summons was served upon the Accused on or about 01.11.2018. The Petitioner, owing to unavailability of a confirmed travel ticket was unable to travel from Gurgaon to Mumbai and attend the Ld. Trial Court on 11.12.2018 but instructed an advocate to attend the proceedings and take appropriate steps in the interest of the Petitioner. The advocate for the Petitioner appeared before the Ld. Trial Court on 11.12.2018 and presented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in a summons, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carrier on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. When an accused makes an application to a Magistrate through his duly authorized counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further." 12. An aforesaid observations would make it clear that, Section 317 of the Cr.P.C. comes into picture at the later stage of the trial recording of evidence. However, under Section 205 of Cr.P.C. on the first day, the Advocate for the accused can record the plea, for which written applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. (Underlines added) 14. The Hon'ble Supreme Court in the case of Indian Bank Association & others (supra) while issuing directions, for appropriately dealing with the cases under Section 138 of the NI Act, in Para 21(5) directed as under: (5) The Court concerned must ensure that examination in chief, cross-examination and reexamination of the complainant must be conducted within the three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses in the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court. 15. Therefore, keeping in view the mandate of Section 143 of the said Act and also judgment of Hon'ble Supreme Court in the case of Indian Bank Association & others (supra), the learned Metropolitan Magistrate wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
