9911796707
TMI Blog2019 (7) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Petition dismissed. - CRIMINAL WRIT PETITION NO. 762 OF 2019 - - - Dated:- 19-7-2019 - S. S. SHINDE J. Mr. Rohan R. Sonawane for petitioner. Mr. A.A. Ponda, Mr. N. Mundargi a/w. Mr. S. Poria Mr. C. Keswani i/b. Economic Law Practice for Respondent No. 1. Mr. A.R. Patil, APP for Respondent/State. JUDGMENT 1. Rule, with the consent of the learned counsel appearing for the parties made returnable forthwith and heard. 2. The present writ petition is filed with the following substantive prayer: b) that this Hon'ble Court be pleased to quash and set aside the impugned order dated 11.12.2018 passed in C.C. No. 8349/SS/2018 on exemption application dated 11.12.2018 filed on behalf of Petitioner by the Ld. 33Rd Metropolitan Magistare, Ballardpier, Mumbai; 3. Brief facts leading for filing the present petition are as under: It is the case of the petitioner that, the petitioner is an individual accused in complaint C.C. No. 8349/SS/2018 filed by Respondent No. 1 befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awn towards the repayment of principal sum of ₹ 100 Crores in the name of the complainant. 5. It is stated in the complaint that the complainant was constrained to present and deposit all the 4 (four) cheques issued by Accused to discharge its principal amount liability of ₹ 100 Crores on 04.06.2018. However, the 4 (four) cheques were returned unpaid on account of insufficiency of funds on 06.06.2018. The complainant immediately vide its statutory legal notice dated 13.06.2018 called upon the accused to pay the cheque amounts to the complainant within a period of 15 days of receipt of the statutory legal notice under the said Act. The complainant thereafter approached the learned 33rd Metropolitan Magistrate, Ballardpier, Mumbai by way of a complaint. The learned Magistrate upon hearing the complainant and perusing the complaint and documents annexed to the complaint held that prima facie case was made out and was further pleased to issue process against accused by order dated 01.10.2018. 6. It is the case of the petitioner 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceeded its powers by directing the advocate to sign on the plea on behalf of the petitioner. 8. It is further contended that, the learned Magistrate ought to have allowed or rejected the exemption application preferred on behalf of the petitioner and the Respondent No. 1 could have taken steps to secure presence of the petitioner on the next date. It is contention of the petitioner that such order to deposit interim compensation ought to have been passed on an application on behalf of the complainant/Respondent No. 1 and not on an application for personal exemption on behalf of the petitioner. Therefore, learned counsel appearing for petitioner submits that, petition may be allowed. 9. Learned counsel appearing for Respondent No. 1 relying upon notes of written submissions placed on record made following submissions. A. Summary nature of proceedings for the dishonour of cheques under the Negotiable Instruments Act, 1881. a. According to the Statement of objects and Reasons of the Negotiable Instruments (Amendment) Act, 2018 Section 143 (A) has been introduced inter alia to address the issue of undue dela in the final resolution of cheque di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd V Bhiwani Denim Apparels Ltd Ors 2001 7 SCC 401 paragraph 3 read with paragraph 17). f. Further, the decision in Bhaskar Industries (supra) speaks of two stages i.e. Section 205 and 317 of the Code of Criminal Procedure 1973 ( CrPc ). Under Section 205 C CrPc, on the first day, the advocate for the accused can record the plea whereas Section 317 of the CrPc speaking of a later stage of the trial recording of evidence. Section 317 of the CrPc has no application with the facts of the present case. g. The ruling of the Supreme Court in Tgn Kumar Vs State of Kerala Ors (AIR 2011 SC 708) supports the decision of the Apex Court rendered in Bhaskar Industries Ltd (supra). C. Section 143A Power to direct interim compensation. a. On a plain reading, this section does not require an application in writing to be made by the complainant for its operation and can be made directly by the Ld. Magistrate. Therefore, learned counsel appearing for Respondent No. 1 submits that petition may be rejected. 10. Heard the learned counsel appearing for the parties at length, with their able assistance perused grounds taken in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (supra) 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. The contention of the learned counsel appearing for the petitioner is that no written instructions were given to the Advocate, thereby authorizing him to record plea of the accused. The Supreme Court in the case of Bhaskar Industries (supra) held that The last limb of Section 317(1) confers a discretion on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Association and Others Vs. Union of India Others reported in (2014) 5 Supreme Court Cases 590 . It would be apt to reproduce herein below Section 143 of the Negotiable Instruments Act, 1881, which reads as follows: 1] 143. Power of Court to try cases summarily.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
