Sunday, 5 July 2015

Whether it is mandatory for Magistrate to obtain surety bond in cheque dishonour case?



In the first place learned Trial Magistrates shall note that 
the cases under section 138 of Negotiable Instruments Act are tried as 
summary cases and attendance of the accused is secured by issuance 
of process of summons.  In such cases the learned Magistrate shall also 
take note of the legal position that execution of personal bond and 
surety bond is not a condition precedent for commencement of trial. 
No doubt, the trial Magistrate has authority to ask for personal bond 
and surety bond to ensure attendance of the accused on the dates of 
hearing.   However, such discretion is to be exercised judiciously.   In 
my opinion unless there is apprehension that the accused would evade 
the trial or would not attend the dates of hearing, the purpose could 
be served by asking the accused to execute personal bond only of a 
reasonable amount.  Surety bonds shall not be required to be executed 
only   because   the   complainant   wants   such   bonds   to   be   executed.
CRIMINAL APPLICATION NO.992 OF 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

 Subhash Atmaram Sharma 

Vs
 State of Maharashtra 

CORAM:­M.L. TAHALIYANI, J.
DATED : 20th MARCH, 2015.
 Citation: 2015(2)BomCR(Cri)304




Admit.   By consent of the parties taken up forthwith for 
final hearing.

Heard learned counsel for the respective parties.   Perused 
2.
the impugned order.
3.
The   Applicants   are   facing   trial   for   the   offence   under 
section 138 of the Negotiable Instruments Act.  They have appeared in 
response to the summons issued by the Court.   Now they have been 
asked to furnish a bail in the sum of Rs.5,00,000/­ each with surety of 
Rs.2,00,000/­   each.     The   learned   Advocate   for   the   Applicants   has 
submitted that the Applicants are permanent residents of Mumbai and 
there is no apprehension that they would not appear before the Court. 
It is brought to my notice that the Applicants had appeared before the 
Court   immediately   after   getting   summons.     As   such,   there   was   no 
reason for the Magistrate to ask the Applicants to furnish bail.   It is 
further pointed out that the Applicants had never been arrested and 
therefore, there was no occasion for the Magistrate to ask for personal 
bond and surety bond.
4.
I have considered the arguments submitted on behalf of 
the   Applicants.     I   have   also   taken   note   of   the   practice   generally 
adopted   by   the   Courts   of   Magistrates   in   Mumbai   with   regard   to 
execution   of   personal   bonds   and   surety   bonds.     It   is   seen   that   in 
megha

almost all cases under section 138 of Negotiable Instruments Act, the 
Trial   Magistrates   direct   the   accused   to   furnish   personal   bonds   and 
surety   bonds   to   the   satisfaction   of   the   Trial   Magistrates.     What   is 
further noted is that in some cases the amount of personal bonds and 
surety bonds is  too oppressive to sustain.   It appears that the Trial 
Magistrate decides the amount of bonds on the basis of amount of the 
cheque   allegedly   dishonoured.     A   large   number   of   litigants   are 

required   to   move   this   Court   for   modification   of   orders   of   the 
Magistrates as they are not able to furnish surety of the amount stated 
in the order of the Magistrates.
In the first place learned Trial Magistrates shall note that 
5.
the cases under section 138 of Negotiable Instruments Act are tried as 
summary cases and attendance of the accused is secured by issuance 
of process of summons.  In such cases the learned Magistrate shall also 
take note of the legal position that execution of personal bond and 
surety bond is not a condition precedent for commencement of trial. 
No doubt, the trial Magistrate has authority to ask for personal bond 
and surety bond to ensure attendance of the accused on the dates of 
hearing.   However, such discretion is to be exercised judiciously.   In 
my opinion unless there is apprehension that the accused would evade 

the trial or would not attend the dates of hearing, the purpose could 
be served by asking the accused to execute personal bond only of a 
reasonable amount.  Surety bonds shall not be required to be executed 
only   because   the   complainant   wants   such   bonds   to   be   executed. 
Learned   Magistrates   shall   not   ignore   the   fact   that  large   number   of 
cases under section 138 of Negotiable Instruments Act are pending in 
various Courts of the Magistrates in Mumbai.  It is just not possible for 

any   Magistrate   to   hear   all   the   cases   shown   in   the   cause   list   of   a 
particular date.  Grant of exemption from personal appearance to the 
accused  in   deserving  cases can  be  one  of  the  modes  to  reduce  the 
unnecessary expenditure incurred by the accused for travelling to the 
Court.  
There may be cases where the execution of bond may not 
6.
be at all necessary if the accused are attending the dates of hearing 
regularly, in person or through their advocates.   Next category could 
be of cases where the purpose could be served by asking the accused 
to   execute   personal   bonds  only  and  third  category   could   be  of  the 
cases where the accused has a tendency to remain absent intentionally 
or without any reasonable cause.  The cases following under the third 
category, in my view, are the cases in which the learned Magistrates 

may ask for personal bonds as well as surety bonds.  In brief, learned 
Magistrates   shall   exercise   their   discretion   judiciously   and   before 
asking   the   accused   to   execute   bonds   shall   take   into   consideration 
various relevant aspects including the fact as to whether the accused 
had a permanent place of residence and business.  Learned Magistrate 
shall   note   that   time   of   the   Court   and   ministerial   staff   saved   by 
reducing the work of execution of surety bonds can be devoted for 
ig
substantial work like hearing of main cases.
As far as the present case is concerned, the order of the 
7.
learned Magistrate asking the Applicants to furnish personal bond of 
Rs.5,00,000/­   each   and   surety   bond   of   Rs.2,00,000/­   each   in   my 
opinion is oppressive and needs to be set aside.  I, therefore, set aside 
the order passed by the Magistrate instead pass the following order :
a)   The   Applicants   shall   furnish   personal   bond   of 
Rs.5,00,000/­ (Rupees Five Lakhs only) each with the 
condition that they will appear before the Magistrate 
on all the dates of hearing unless exempted by the Trial 
Magistrate from personal appearance.
b) Learned   Magistrate   shall   take   note   of   the 
observations   made   by   this   Court   and   shall   make 

endeavour to see that money and time of the accused is 
not wasted unnecessarily.
c) Registrar General of this Court is directed to forward 
copy   of   this   judgment   to   the   Chief   Metropolitan 
Magistrate, who shall forward copies thereof to all the 
Additional   Chief   Metropolitan   Magistrates   and 

Metropolitan Magistrates in Greater Mumbai.
The application stands disposed of accordingly.
8.
(JUDGE)


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