Bombay High Court: S.S. Shinde, J. dismissed a writ petition filed against the order of the Magistrate who had directed the petitioner to deposit 20% of the amount of the subject cheques while allowing his application of exemption from appearance on the condition that his Advocate record the plea.
The petitioner was alleged to be a debt of Rs 100 crores due to Aditya Birla Real Estate Fund — the complainant. It was alleged that he had issued 4 cheques in the name of the complainant for discharging the said debt. However, when presented for encashment, the said cheques were dishonoured for insufficiency of funds. After the legal formalities, the complainant registered a complaint under Section 138 (dishonour of cheque) of the Negotiable Instruments Act, 1881. Subsequently, the process was issued by the Magistrate and summons were served on the petitioner. He was, however, not able to appear before the Magistrate due to non-availability of confirmed railway ticket from Gurgaon to Mumbai. But he instructed his Advocate to attend the proceedings and “take appropriate steps in the interest of the petitioner”. The Advocate appeared before the Magistrate and presented an application for personal exemption of the petitioner. The Magistrate passed a conditional order thereby allowing the exemption application on a condition that the Advocate for the petitioner shall record plea on his behalf if the Advocate pleads not guilty then the petitioner 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. The impugned order was passed by the Magistrate in the exercise of his powers under Section 143-A of the NI Act.
Rohan R. Sonawane, Advocate for the petitioner contended that Magistrate erred in passing the impugned order when the petitioner was absent and an exemption application seeking personal exemption for the day was sought on his behalf. Per contra, A.A. Ponda, N. Mndargi, S. Poria and C. Keswani, Advocates for Aditya Birla Real Estate Fund, opposed the present petition.
The High Court referred to several cases of the Supreme Court including Surinder Singh Deswal v. Virender Gandhi, 2019 SCC OnLine SC 739 and Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401. It was noted, “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 petitioner was that no written instructions were given to the Advocate, thereby authorising him to record a plea of the accused. On this aspect, the Court stated: “Under Section 205 CrPC on the first day, the Advocate for the accused can record the plea, for which written application by the accused is not contemplated.”
Note was also taken of the fact that the petitioner filed the present petition near about 2 months from the date of passing the impugned order. The proceedings under Section 138 are required to be disposed of within 6 months keeping in view the mandate of Section 143 of the NI Act and within 3 months from the date of assignment of the case as held by the Supreme Court in Indian Bank Assn. v. Union of India, (2014) 5 SCC 590.
Keeping in view the mandate of Section 143, the Court was of the opinion that the Magistrate was right in passing the impugned order. In such view of the matter, it was held that the petition was liable to be rejected.[Sidharth Chauhan v. Aditya Birla Real Estate Fund, 2019 SCC OnLine Bom 1297, decided on 19-07-2019]