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)
Print Page
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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