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Presence in court hearing for cheque return case

(Querist) 02 May 2013 This query is : Resolved 
Dear Experts,

In the cheque return case file against our company. The litigant has mentioned me the Managing Director, our Chairman and the company as accused. Is there any way that we can avoid our chairman from the usual court summon hearings, as he is aged and hence is not actively involved in the company operations, but however is a signatory to the cheque.
M.Sheik Mohammed Ali (Expert) 02 May 2013
you just send your legal executive than conduct the trial. or go amicable settlement
Kishan Karunakaran (Querist) 02 May 2013
Dear Mr.Sheik Mohammad Ali,

Thanks for your speedy reply. What is documentation to empower the legal executive to represent all the accused, is there any Power of attorney or Resolution or both required.
Advocate M.Bhadra (Expert) 02 May 2013
You can send your office bearer duly authorized but physical appearance require at the time of evidence that person who executed the Vakalatnama to the lawyer.

PERSONAL APPEARANCE REQUIRED IN CHEQUE BOUNCE CASE:S.C.

The power of magistrate to direct a person, facing cheque bounce case, to appear personally cannot be done away with, the Supreme Court has said while quashing a Kerala High Court's ruling which had directed that personal appearance in such cases was not required.

The apex court held that order passed by the High Court amounts to interfering in the functioning of lower court judges, who have the power to decide whether personal appearance is required or not.

"We have no hesitation in holding that the High Court exceeded its jurisdiction by laying down the general directions," a bench of Justices D K Jain and A K Ganguly said, adding, directions by the High Court were wholly uncalled for.

The Kerala High Court had directed that in check bounce cases personal appearance of an accused is not required, saying that "there was great need for rationalising, humanising and simplifying the procedure in criminal courts" in dealing with offences which are technical in nature and do not involve any moral turpitude.
The apex court, however, was not convinced with the rational and said that High Court cannot lay down directions for the exercise of discretion by the magistrate.

"While it is true that the power of superintendence conferred on the High Court is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority."

"In any event, the power of superintendence cannot be exercised to influence the subordinate judiciary to pass any order or judgement in a particular manner," the bench said.

It said the order passed by the High Court is unsustainable.

"...satisfaction whether or not an accused deserves to be exempted from personal attendance has to be of the magistrate, who is the master of the court in so far as the progress of the trial is concerned and none else," the Bench said.
Raj Kumar Makkad (Expert) 02 May 2013
As your Chairman is a signatory of the cheque, there is no scope for him to get himself out of complaint. He can definitely get personal exemption on certain ocassions during trial under section 205 of criminal procure code.
Kishan Karunakaran (Querist) 03 May 2013
Dear Experts,

Please elaborate how I should proceed to ensure that the presence in the court for hearings is restricted to our legal executive or at best me being present for the hearings, saving our chairman the trouble of being present for the hearings.
Raj Kumar Makkad (Expert) 03 May 2013
There is no such law as you desire.
Kishan Karunakaran (Querist) 03 May 2013
Dear Experts,
I appreciate the reply, but there should be some way for me to inform the court that the Chairman is aged and it could be inconvenient for him to appear for the hearings and then I agree it is the magistrate's prerogative to call for the chairman if he deems it necessary. My query is what the document that I should move to the court for this purpose.
Adv. Chandrasekhar (Expert) 03 May 2013
Move an application for permanent exemption from personal appearance on the grounds said by you. It is not unique situation, where big politicians and VIPs are involved, such exemptions are granted. If your application is declined, you can go for appeal or start to move application on every date for personal exemption for that particular date.
DEFENSE ADVOCATE.-firmaction@g (Expert) 03 May 2013
As advised by Ad Chandu move an application for permanent exemption , it will be allowed. The case law referred above by Ad Bhadra is that no general direction for exemption can be given.

There are no of case laws of APEX COURT and HC s in the matter, however the application has to be properly drafted.

Alternatively there is a very simple solution. Study the complaint and its documents and raise a viable issue and request the court to decide it first During the process no presence will be needed except of your counsel.

Go in revision if disallowed so matter will go on an on.

Proper line of action can be suggested on going though the complaint and other record.
Advocate Ravinder (Expert) 03 May 2013
I complete agree with M.Bhadra's opinion. There should be authorisation letter and Special GPA from your MD and chairman. But your M.D and Chairman should be present personally at the time of trial. In view of the SC Judgement absence from personal appearance may not be possible. If your boss is weak and cannot get up, then the court will appoint Advocate Commission to note down the evidence.

DEFENSE ADVOCATE.-firmaction@g (Expert) 04 May 2013
1) where is the need of the evidence of accused at this stage.

First there will be evidence of complainant and accused has to remain present, so how commission can be appointed.

2) To cut further arguments short pl tell the case details and court and we will show you how to work on our strategy detailed above so also far similar cases any where.
prabhakar singh (Expert) 04 May 2013
In view of the SC Judgement absence from personal appearance may be possible if court allows exemption sought.

Why does not company move for compromise on the very first date.
Hemant Agarwal (Expert) 05 May 2013
OPTIONS:
1. As pointed out by Learned Adv. Mr. Makkad, "personal exemption on certain ocassions during trial under section 205 of criminal procure code".
Note: Produce appropriate Medical Certificate alongwith application u/s 205 of Cr.P.C.. The trial court magistrate, logically will have no qualms in granting personal exemption till evidence, cross stage.


QUOTE: 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 hereinbefore provided.
UNQUOTE:


2. Rake up law-point issues by moving Applications and keep the matter lingering, till orders on the said application. Repeat procedure at relevant time. Repeat Medical Certificate plus exemption application at time of cross stage. The trial may be jinxed, termproraily.

3. IF it is so important to protect the sacred Chairman from court appearances, THEN move compounding application before the trial court and pay off the legally enforceable debt and set free the chairman from all probable troubles.

4. ULTIMATE: move a WP before the state HC, for quashing the case (on logical and legal grounds) and pray for stay on the trial court proceedings. The chairman need not ever go to the HC and Till conclusion of the matter in the HC, the sacred Chairman will be able to sit back and relax.

Keep Smiling .... Hemant Agarwal
V R SHROFF (Expert) 05 May 2013
Once you informed the reason of stop payment, for no delivery, it is no more 138 case and becomes Civil matter.

205 cr pc provide dispensig with personal appearance as suggested by experts.
As a co, can appoint Executive / POA for conducting case except Chief Evidence Cross.
Arun Kumar Bhagat (Expert) 05 May 2013
See Bhaskar Industries judgement (S.C)on 205 Cr.P.C.Bhaskar Industries Ltd. v. M/s. Bhiwani Denim & Apparels Ltd., 2001 All MR (Cri) 1961 (SC): AIR 2001 SC 3625: 2001 Cr LJ 4250: 2001 AIR SCW 3413,
DEFENSE ADVOCATE.-firmaction@g (Expert) 06 May 2013
1) Bhaskar case is basic citation for exemption but still case has to be made out otherwise as a rule exemption can not be allowed.

1) Stop payment, security cheque and blank cheque defense if not supported by cogent evidence have been rejected even upto SC level.

In CRIMINAL APPEAL about cheque case decided on JULY 3, 2012., SUPREME COURT recently rejected such defense, even though there was a chit in the handwriting of the complainant and admitted by him for lesser dues but there was a promissory note for higher amount.

Lower court is the best place to demolish the case of complainant but by cogent evidence.

Mere statements of accused does not have any evidence value.


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