Accused Cannot Claim Blanket Exemption From Personal Appearance In Cases Under Section 138 NI Act: Supreme Court

The Supreme Court observed that an accused cannot claim a blanket exemption from appearance in a case pertaining to the offence under Section 138 of the Negotiable Instruments Act.

In this case, the Magistrate dismissed an application filed by the accused in a cheque bounce case claiming a blanket relief of his being exempted, on all dates, when the case would become listed before the Magistrate for his personal appearance. Later, partly allowing his Revision petition, the Sessions Court directed that, the accused shall furnish bail bonds /surety bonds to the satisfaction of the Magistrate by putting in appearance before the Magistrate, and on their furnishing undertaking to the effect that no dispute regarding identity would be raised and that their counsel would regularly appear, the Trial Court shall exempt them from personal appearance, subject to other requirements of presence, as and when necessary.

Further, seeking a blanket exemption, the accused moved the High Court of Punjab and Haryana, which dismissed his petition. The High Court observed that there is no specific provision in the Cr.P.C., empowering the  trial Judge concerned to, on all occasions purvey a blanket exemption to the accused from his making his personal appearance.

Before the Apex Court, the accused relied on the judgment M/s Bhaskar Industries Ltd. v. M/s Bhiwani Denim Apparels Ltd.: (2001) 7 SCC 401 and reiterated the contentions raised by him before the High Court. The bench, perusing the said judgment, observed that it does not deal with a claim for blanket exemption from personal appearance.

"Having gone through the said decision, we are satisfied that the observations therein essentially co-relate with the facts of the said case. Moreover, even while observing that in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel, this Court has also indicated that such discretion needs to be exercised only in rare instances and there ought to be good reasons for dispensing with the presence.", the court said.

While dismissing the special leave petition, the court observed:

"It is difficult to appreciate that in the case of the present nature, the petitioners seek to avoid appearance even once in terms of the order of the learned Sessions Judge. We find no reason to entertain this petition."

In M/s Bhaskar Industries Ltd. (supra), the Supreme Court had held that it is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to 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 carries 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. We may reiterate that when an accused makes an application to a magistrate through his duly authorised 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.", it was observed.

Case details

Mahesh Kumar Kejriwal vs Bhanuj Jindal | 2022 LiveLaw (SC) 394 | SLP (Crl) 3382/2022 | 18 April 2022

Coram: Justices Dinesh Maheshwari and Aniruddha Bose

Counsel: Adv Soubhik Mitter

Headnotes

Summary: SLP against Punjab & Haryana HC judgment which refused petitioner's claim of blanket exemption from personal experience in case under Section 138 NI Act -Dismissed - It is difficult to appreciate that in the case of the present nature, the petitioners seek to avoid appearance even once in terms of the order of the learned Sessions Judge.