Presence Of Accused Should Ordinarily Not Be Insisted Upon In Cheque Bounce Proceedings Which Are Semi-Criminal/Civil In Nature: Rajasthan HC
The Rajasthan High Court held that the presence of an accused particularly in a matter of the kind in hand (under Section 138 of the Negotiable Instruments Act) should ordinarily not be insisted upon in cheque bounce proceedings which are semi criminal/civil in nature.
The Court set aside the impugned order of the trial court in a dishonour of a cheque under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) where its decision to forfeit the accused’s bail bonds, issuance of arrest warrant and proceedings under Section 446 of the Cr.P.C were challenged.
A Single Bench of Justice Arun Monga observed, “I am of the view that presence of an accused particularly in a matter of the kind in hand, where proceedings are semicriminal/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.”
Advocate S.P. Sharma appeared for the petitioner, while P.P. Shri Ram Choudhary represented the respondents.
On a query posed by the Court regarding the default caused by the accused in his personal presence, the accused submitted that he had to attend to his ailing wife. The accused had filed an application seeking exemption from his personal appearance. However, the High Court stated that the trial court took a harsh view of the matter, under the impression that the reasons stated by the accused in the application were not genuine.
The accused submitted that he had no intention at any stage of causing a delay in the proceedings and the circumstances were beyond his control as there was no one else in the family to look after his wife. Therefore, his arrest warrant may be converted into bailable warrant, he argued.
“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 stated.
The Court held that “the impugned order directing the forfeiture of the bail-bonds of the petitioner accused and initiating proceedings against his surety under Section 446 Cr.P.C., ibid, has to be necessarily set aside. It is so ordered.”
Consequently, the Court further held, “Resultantly, as an upshot of my discussion and in the light of judgments, ibid, the impugned order dated 11.09.2024 is set aside. 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.”
Accordingly, the High Court disposed of the petition.
Cause Title: Amit Kumar Dave v. State of Rajasthan & Anr. (Neutral Citation: 2024:RJ-JD:44040)
