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IN THE COURT OF JMFC VIII, BELAGAVI

Present:
[Link].K., B.A(LAW).,LL.B,
JMFC VIII, Belagavi.
Dated this the 27th Day of April, 2022

[Link]. 876/2021
Complainant:
Sri. T.S. Ravisekar, S/o. Subramanian
Aged about: 38 years, Occ: Business,
R/o: Plot No. 2685, CTS No. 8086,
Opp. Mugalkodmath, Double Road,
Shree Nagar, Tq & Dist: Belagavi.

(By Sri. N.S. Taragar, Advocate)

V/s
Accused:
Smt. Sampoornam Ganeshan W/o.
Ganeshan
Aged about: 48 years, Occ: Housewife,
R/o: DoorNo. 21/1, Mahadevpuram,
Street No. 2, Tiruchengodu
Dist: Namkkal, State: Tamil Nadu.

(By Sri. A.A. Mulla, Advocate)

ORDERS ON APPLICATION FILED UNDER SEC.317 OF
Cr.P.C.
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The advocate for the accused has filed the present application under

Sec.317 of Cr.P.C., praying to dispense the presence of the accused

permanently till disposal of the case, in the interest of justice and equity.

2. In the said application it is stated that, the accused is

permanent resident of Mahadevpuram Street No. 2, Tiruchengodu

Namakkal Tamil Nadu. It is further stated that, the accused is an old age

lady and suffering from high blood pressure. Further it is stated that, the

offence alleged against the accused is punishable U/Sec. 138 of NI Act and

same is bailable one and for the trial of the said case the presence of the

accused is not required. It is further stated that, due to pandemic Covid-19

it is not safe for the accused to travel from Tamil Nadu to Belagavi in every

hearing dates to avoid the infection. Since the accused already furnished the

surety, it is appropriate to exempt her permanently. Moreover the

complainant not disputes the identity of the accused and same is admitted

by the accused. Hence, prays to allow the application by permanently

exempting the accused.

3. The counsel for complainant has filed the objection

contending that, the application filed by the accused is not maintainable

under the law. It is further contended that, the accused is 48 years old lady

and she is very much healthy to attend the Court. It is further contended
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that, the Government has already removed the traveling restrictions due to

Covid-19, but with respect of admitting the identification, the accused has

not filed her affidavit. Further it is appropriate to direct the accused to

execute the bond for a reasonable amount with solvent surety and there

may be chance of absconding of accused. Hence, prays to reject the

application.

4. I heard both the sides and perused the documents on record.

Meantime during the time of argument the counsel for accused has filed

synopsis along with decisions. Perused. Taken on record.

In the memo the counsel for accused has relied upon the following

07 decisions:

i) 2001 AIR SC 3625

ii) 2005 (4) SCC 173

iii) 2007 Cri.L.J. 205

iv) 2010 Cri.L.J. 4171

v) 2005 Cri.L.J 440

vi) 1989 Cri.L.J. 523

vii) 1956 Cri.L.J. 373

5. The points that arise for my consideration are as under:

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1. Whether the application filed by the accused

under Sec.317 of Cr.P.C., deserves to be allowed at this

stage?

2. What order ?

6. My answer to the above points are as under:

Point No.1 : In the Affirmative,

Point No.2 : As per final order, for the following :

REASONS

7. POINT No.1: Admittedly this is a private complaint filed

by the complainant against the accused for the offence punishable under

Sec.138 of Negotiable Instrument Act. When the matter was stood for hear

on other IA, the counsel for the accused has come up with this application

and the counsel for complainant opposed the same.

8. In the present case the record reveals that, the complainant

has filed his affidavit in lieu of his sworn statement on 28.10.2021 to treat

the sworn statement as examination in chief and documents also marked

and as per ratio held in Indian Bank Association V/s Union of India case

reported in 2014 AIR SCW 3462 the said sworn statement was considered
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and took the cognizance of the alleged offence and summons issued to the

accused. Meantime the accused has appeared through her counsel and she

was enlarged on bail. Further plea of the accused was recorded wherein,

she has denied the substance of accusation. Further the counsel for accused

has filed an application U/Sec. 145(2) of NI Act along with present

application.

9. The counsel for accused stated that, the accused is the

resident of Tamil Nadu and the alleged offence is bailable one. Further due

to Pandemic Covid-19, it is not appropriate to the accused to travel from

Tamil Nadu to Belagavi and prays to dispense her presence during the

course of trial. Per contra the counsel for complainant contended that, the

accused has not furnished any documents to show her ill health and now the

government has removed the traveling restriction of Covid-19 and there

may be chance of absconding of accused. Hence solvent surety as well as

personal bond has to be collect from the accused and prays to reject the

application.

10. At this stage, it is to be noted as per Sec. 317 of Cr.P.C.,

which deals about provision of enquiry and trail being held in the absence

of accused which reads as follows:

317. Provision for inquiries and trial being held in the absence of
accused in certain cases: (1) At any stage of an inquiry or trial
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under this Code, if the Judge or Magistrate is satisfied, for reasons

to be recorded, that the personal attendance of the accused before
the Court is not necessary in the interests of justice, or that the
accused persistently disturbs the proceedings in Court, the Judge
or Magistrate may, if the accused is represented by a pleader,
dispense with his attendance and proceed with such inquiry or trial
in his absence, and may, at any subsequent stage of the
proceedings, direct the personal attendance of such accused.
(2) If the accused in any such case is not represented by a
pleader, or if the Judge or Magistrate considers his personal
attendance necessary, he may, if he thinks fit and for reasons to be
recorded by him, either adjourn such inquiry or trial, or order that
the case of such accused be taken up or tried separately.
11. Moreover Sec. 205 of Cr.P.C., deals about Magistrate may

dispense with personal attendance of accused which reads as follows:

205. Magistrate may dispense with personal attendance of

accused.(1) Whenever a Magistrate issues a summons, he may, if
he sees reason so to do, dispense with the personal attendance of
the accused and permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his
discretion, at any stage of the proceedings, direct the personal
attendance of the accused, and, if necessary, enforce such
attendance in the manner herein before provided.

12. The plain reading of the above provisions shows that, it

gives ample power to the Magistrate to dispense the presence of

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the accused during the time of trial and also empowers the

Magistrate that, if the presence of the accused at any stage appears

to be relevant then he can direct him so to appear. In this case both

the parties admits the fact that, the accused is the resident of

Tamil Nadu. More over as stated supra, the plea of the accused

already recorded.

13. The facts of the case shows that, as per complaint

averments the husband of the accused is doing bore well business

and he is the friend of the complainant and they were acquainted

with each other. Further stated that, due to financial problem the

accused along with her husband have approached the complainant

and requested for a hand loan of Rs. 6,00,000/ and assured him to

repay the same within 03 months. In this regard the accused has

issued alleged cheque as per Ex.P.1 and same was dishonoured.

The said aspects shows that, the accused who is a lady along with

her husband did the alleged transaction which appears to be

business transaction as per complaint averments.

14. In order to support the contention the counsel for the

accused has furnished a decision reported in 2001 AIR SC 3625 – M/s.

Bhaskar Industries Ltd., Vs. M/s. Bhiwani Denim and Appareles Ltd., &
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Others, wherein, the Hon’ble Apex Court it is held that, ‘Sec. 317 of the

Code has to be viewed in the above perspective as it empowers the Court to

dispense with the personal attendance of the accused (provided he is

represented by a counsel in that case) even for proceedings with the further

steps in the case. However one precaution which the Court should take in

such situation that, such benefit need to granted only to an accused who

gives an undertaking to the satisfaction to the Court that he would not

dispute his identity as a the particular accused in the case and that a

counsel on his behalf would be present in Court and that, he has no

objection in taking evidence in his absence. Admittedly in the present case

the alleged offence is punishable under Sec 138 of NI Act wherein, the

identity of the accused generally not in question. Moreover, in the present

application the accused stated that, she is not disputing her identity.

Moreover in this case already the plea of the accused was recorded on

12.01.2022 and her presence is required during the time of recording of her

statement U/Sec. 313 of Cr.P.C. Hence the ratio held in the said decision is

aptly applicable to the present case.

15. Further the counsel for accused also furnished a decision

reported in 2005 (4) SCC 173 – S.V. Muzumdar and others Vs. Gujarat

State Fertilizer Co. Ltd., and Another, wherein, Hon’ble Apex Court has
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discussed the scope Sec. 141 and 205 of Cr.P.C. wherein it is held that, ‘it

has to be born in mind that, while dealing with an application in terms of

Sec. 205 of the Code the Court has to consider whether any useful purpose

would be served by requiring the personal attendance of the accused or

whether progress of the trial is likely to be hampered on account of his

absence. Further it is held that, if the trial Court comes to a conclusion that,

the accused persons trying to delay the completion of the trial, it shall be

free to refuse the prayer for dispensing with personal attendance.’ As

stated supra in this case already the plea of the accused was recorded.

Hence, the ratio held in the said decision is aptly applicable to consider

which supports the contention of the accused.

16. Further the counsel for accused also furnished a decision

reported in 2007 Cri.L.J. 205 – R.P. Gupta Vs. State of M.P., & Another

wherein, Hon’ble High Court MP has discussed the scope of Sec. 205 of

Cr.P.C., and held that, ‘when the accused is not likely to abscond and the

complainant is not prejudiced if exemption was granted then it is a fit case

for granting exemption.’ Further in the said case, the Hon’ble Court has

observed the ratio held in Shanti Saroop Gupta Vs. Chandrakant Bhole

wherein, it is held that, ‘when the accused are ladies, old and sick persons,

workers in factory, daily wage earners, other laborers and busy business
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people or industrialist, discretion under the Section should be exercised

liberally.’ In this case, the accused is a lady and she is resident of

Tamil Nadu and already furnished her surety. Hence, it is appropriate to

consider her prayer as the ratio held in said decision is aptly applicable to

the present case.

17. Further the counsel for accused also furnished a decision

reported in 2010 Cri.L.J. 4171 - V.S. Reddy Vs. Excel Glasses Ltd., &

Another, wherein Hon’ble High Court of Kerala has discussed the scope of

Sec. 205 of Cr.P.C. and held that, ‘the said provision gives remotest

indication that, in order to claim exemption from personal attendance the

accused must at the first instance appear personally in Court. On the

contrary the sub section clearly goes to show that, even of the stall of

issuing summons the Magistrate may if he sees reasons so to do, dispense

with the personal attendance of the accused and permit him to appear by

his plead. This discretion may be exercised by the Magistrate own in the

absence of any prayer by the accused for exemption from personal

attendance.’ The ratio held in the said decision is aptly applicable to the

present case.

18. Further the counsel for accused also furnished a decision

reported in 2005 Cri.L.J 440 – Sushil Kumar Gupta Vs. State of

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Jharkhand and Another, wherein Hon’ble High Court Jharkhand has

discussed the scope of Sec. 205 of Cr.P.C., and in the said case observed

that, ‘Sec. 205 of Cr.P.C., was allowed and the counsel for accused must

given an undertaking to the satisfaction of the Court that, he would not

dispute his identity as the particular accused in the said case.’ In the

present case already the counsel for the accused in the application itself has

stated so. Hence the contention of the complainant that, the accused may

abscond in future and solvent surety etc., not subsistence to consider as the

accused already furnished the surety.

19. Further the counsel for accused also furnished decisions

reported in 1989 Cri.L.J. 523 – Ajit Kumar Chakraborty and others Vs.

Serampore Municipalty and 1956 Cri.L.J. 373 – Aijaz Masih and others

Vs. Desouza wherein Hon’ble High Court of Calcutta and Madhya Pradesh

has discussed the scope of Sec. 205 of Cr.P.C., and held that, ‘if an

application for dispensing with the personal attendance is moved at this

stage the Magistrate can in exercises of their inherent power, dispense with

the personal attendance of the accused persons provided that, they are

satisfied that, the application has been moved by or on behalf of the correct

accused persons.’ In this case there is only one accused and she has not
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disputes her identity also. Hence the ratio held in the said decisions are

aptly applicable to the present case.

20. On considering all these facts and circumstances and also by

considering the ratio held in the said decisions it is appropriate to consider

the request of the accused. More over now the government is discussing the

impact of third wave of Covid-19. Hence in the interest of justice and also

by considering the distance from Tamil Nadu to Belagavi, it is apt to allow

the application. Hence, without further discussion, I answer Point No.1 in

the AFFIRMATIVE.

21. Point No.2: As per my discussion in point No.1, I proceed

to pass the following:

ORDER

The application filed by the counsel for accused

under Sec. 317 of Cr.P.C., is hereby allowed with a cost Rs.
100/-.
The accused is hereby permanently exempted during
the time of trial and directed to appear during the time of
recording of her statement U/Sec. 313 of Cr.P.C., and
whenever this Court directed so.

Sd/-
(SHEMIDA.K.)
JMFC-VIII, Belagavi.