Cheque Bounce Cases Semi Criminal/Civil In Nature, Presence Of Accused In Hearing Not To Be Insisted Upon: Rajasthan High Court

The Jodhpur bench of the Rajasthan High Court has recently ruled that presence of accused particularly in cheque bouncing cases–which are semi-criminal/civil in nature, should not be ordinarily insisted upon, unless the trial court needs to either examine the accused or their statement is to be recorded.

A single judge bench of Justice Arun Monga was hearing a quashing plea of a man booked for cheque dishonour under Section 138 of Negotiable Instruments Act. He had challenged the trial court's order which forfeited his bail bonds and issued an arrest warrant against him for non-appearance on a date. The trial court had also initiated proceedings under Section 446 Cr.P.C. (Procedure when bond has been forfeited) against the man's surety. 

It was the case of the counsel for the petitioner that owing to his wife's ill health, the accused had requested to file an exemption application from personal appearance. But the trial court took a harsh view under the impression of the reasons stated by the accused to not be genuine, since exemption applications were moved by him in the past too, and dismissed the same. 

The high court however said, "I am of the view that presence of an accused particularly in a matter of the kind in hand, where proceedings are semi criminal/civil in nature, should ordinarily not be insisted upon, if an application is moved for a particular hearing, unless the trial court needs to either examine the under-trial or his statement is to be otherwise recorded for proceeding further in the matter". 

"As regards the directions issued by the learned trial court to proceed against the sureties under Section 446 Cr.P.C., the same is also a serious procedural fallacy committed by the learned trial Magistrate and cannot be sustained," the court added. 

The court referred to Punjab and Haryana High Court's decision Mohammad Haras v State of Punjab (2023) in which it was held that cancellation of bail was a serious matter having significant impact on life of a person which could not be taken so lightly in such a mechanical manner and thus, before passing such order court must afford opportunity to the accused to explain why the bail should not be cancelled.

Further reference was made to the high court's decision in Arun Solanki v State, also rendered by Justice Monga, in which even though the magistrate had accepted the application seeking exemption from appearance but had imposed a cost of Rs. 5,000 on the accused. Terming the decision of the trial court as misapplication of judicial discretion and arbitrary, the court in Arun Solanki had said:

“Presence of an under-trial is not to satisfy the ego of the court but to ensure that he can safeguard his interests during the trial, and his absence should not prejudice his case or jeopardize his right to a fair trial. Imposing such irrational conditions in a rigid manner, even when the accused's presence is not required, is completely unwarranted. An under-trial/accused's personal presence thus should not be insisted upon when it is not necessary for the progress of the trial". 

In view of the same, the high court in the present case, set aside the trial court's order. 

"The original bail bonds of the petitioner accused as well as bonds of his sureties are restored subject to payment of Rs.7,500/-, as cost, to be paid to the complainant. Trial to proceed further, in accordance with law," the high court added. 

Title: Amit Kumar Dave v State of Rajasthan & Anr.

Citation: 2024 LiveLaw (Raj) 327

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