Court No. - 49
Case :- CRIMINAL REVISION No. - 2549 of 2017 Revisionist :- Dr.Ms. Arfa Khan And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Lihazur Rahman Khan,Araf Khan Counsel for Opposite Party :- G.A.,Amit Saxena,Kamta Prasad,Mahesh Prasad Yadav,Om Prakash,Raj Kumar Dhama
Hon'ble Vivek Agarwal,J.
1. Heard Sri L.R. Khan, learned counsel for the revisionist and Sri M.P. Yadav, learned counsel for the private respondent.
2. This writ petition has been filed by the revisionist who are accused before the court below in a matter pertaining to Section 138 of the Negotiable Instrument Act, 1881 has filed this revision being aggrieved of order dated 12.07.2017 passed in complaint case No.451 of 2017 by the learned Additional Chief Judicial Magistrate, Hameerpur dismissing the discharge application dated 03.03.2017 as not maintainable and directing the revisionist to remain present on 28.07.2017 before the court below for the purposes of their bail.
3. Learned counsel for the revisionist submits that no offence has been made out by them and fact of the matter is that revisionist are senior doctors practising in Landon. They are persons of Indian origin and British citizens. Dispute is between them and their relative respondent no.2, who according to them has mis-appropriated the cheques and played fraud with them, inasmuch as, dates on the cheque were interpolated after the cheques were dishonoured and month was changed from January (01) to September (09). Once, the cheques were already returned unpaid and thus through manipulation on the same set of cheques, they were presented again.
4. It is submitted that complaint filed by the complainant pertains to Cheque Nos.000003 and 000004, which were dis-
honoured and returned respectively for the reasons that drawer's signatures differs and in note that contact drawer respectively on 11.01.2016 and 16.01.2016 as is evident from the bank statement given by Bank of Baroda on which, said cheques were drawn.
5. It is submitted that same cheques were presented by the complainant after interpolating the dates and changing the month from January to September, when they were dis- honoured and a complaint case was filed, taking a plea that revisionist had visited India on 04.04.2016, when revisionist altered the date from 05.01.2016 to 05.09.2016 on the strength of which, cheques were again presented on 27.10.2016, but dishonoured on account of stop payment instructions.
6. Learned counsel for the revisionist has placed reliance on the judgment of Supreme Court in case of M/S. Bhaskar Industries Ltd Vs. M/S. Bhiwani Denim & Apparels Ltd. and others; (2001) 7 SCC 401, wherein, it is held that personal attendance of an accused before a criminal court can be dispensed with in the interest of justice. It is held that in a summon's case, such as one involving offence under Section 138 of N.I. Act, if it appears to the court that personal attendance may result in enormous hardship caused to an accused, the court may dispense with his personal attendance either through out or at any particular stage of the proceedings after taking an undertaking from him that he would not dispute his identity as the particular accused in the case and that a counsel on his behalf would be present in court and he would have no objection in taking evidence in his absence. It is further held that main concern of the court is administration of criminal justice and for that purpose the court proceedings should register progress.
7. After hearing learned counsel for the revisionist and going through the record, as far as re-validation is concerned, it is a matter of evidence. In case of Veera Exports Vs. T. Kalavathy; AIR 2002 SC 38, it is held that a cheque which has become invalid because of the expiry of the stipulated period could be made valid by alteration of dates. It is also a matter of evidence, as to whether petitioners were in India or not on the dates, when complainant has alleged that cheques were re-validated. However, it is also true that as per the law laid down in case of M/S. Bhaskar Industries Ltd (supra), the court concerned was required to consider the facts and circumstances of the case and that consideration has been made when court concerned has recorded a specific finding that in terms of the order dated 06.02.2017 passed by the High Court in Application U/S 482 No.3065 of 2017, no coercive action was directed to be taken as counsel for the applicants appearing in a petition/application under Section 482 had made a request, which was granted to appear before the court below through the representing counsel and move an application seeking compounding of offence through compromise. Court below has categorically noted that accused have not shown any inclination towards compromising the matter and compounding the offence through compromise as was represented before the High Court in an Application under Section 482 and, therefore, rejected discharge application.
8. Even in case of M/S. Bhaskar Industries Ltd (supra), the ratio of law is that discretion to dispense with the personal attendance should be exercised in rare cases due to distance or any physical disability or other good reason, in the interest of justice. But, in the present case, once liberty was sought from the High Court in the garb of compounding of offence and then complainant decided to take a U-turn and instead decided to contest the case on its own merits, which can be adjudicated only once evidence is led, then the court below can neither be said to be unreasonable, nor arbitrary in its approach in passing the impugned order calling for any interference in the revisional jurisdiction.
9. However, it is made clear that if revisionist appears before the court below and move an application for bail, then the court concerned shall consider the application for bail in the right earnest and shall also if an application is moved for dispensing their future presence before the court with an undertaking to appear before the court concerned through counsel in terms of the law laid down in case of M/S. Bhaskar Industries Ltd (supra), then trial court shall consider said application afresh on its own merits without being prejudiced with its earlier order, which is subject matter of challenge in this revision or the order being passed today in the revision petition.
10. In above terms, Criminal Revision is disposed off.
Order Date :- 17.9.2021 Ashutosh