10.2010 Mrs. Renuka Walia v. Rakesh Kumar & Anr.

P8) for staying further proceedings before the learned trial Court in which it was pleaded that there was no such flat in existence for which the petitioner paid the above said huge cash amount and the said averment has not been denied by respondent No.1 in his reply (Annexure P9). Therefore, it is submitted that the legal notice dated 5.2.2009 (Annexure P3) in terms of Section 138 of NI Act cannot be said to have been served. During the course of hearing, it is not disputed by the learned counsel for the petitioner that these aspects are to be established by leading evidence. However, it is the stand of the learned counsel that the said position evidently shows that the complaint (Annexure-P.2) that has been filed is baseless and the petitioner would yet have to undergo the travails of trial. Therefore, it is prayed that the petitioner would establish her case on the aforesaid two aspects and other defences as are open to her. However, the petitioner being a lady and also a Municipal Councillor, her presence for each date of hearing during the trial of the case be dispensed with. After giving my thoughtful consideration to the matter, it may be noticed that the effect of the cheque on the basis of which the complaint (Annexure-P.2) has been filed being Crl. Misc. No. M-30577 of 2010 [5] not issued from the account of the petitioner but from the account of her husband, if at all the same is the correct position, would be required to be considered by the learned trial Court. It would also have to be ascertained whether the said cheque, in any case, bears the signatures of the petitioner and if so its effect. Besides, the documents which have been referred to by the learned counsel for the petitioner are to be considered and gone into by the learned trial Court in case they are proved and set up before her. This Court in exercise of its inherent jurisdiction under Section 482 CrPC is not to carry out a parallel proceedings or embark upon an inquiry to ascertain whether or not the cheque in question has been issued from the account of the petitioner and, in any case, what would be its effect. Moreover, it is to be considered by leading evidence whether an offence as alleged is made out or not. The certificate dated

07.10.2010 (Annexure P10) issued by the HDFC Bank would also have to be proved and exhibited on record before the learned trial Court. The same is not such a document which is per se admissible in evidence. Besides, even the legal notice (Annexure P3) which the petitioner states was not received by her would have to be considered by the learned trial Court after evidence is led by the parties and after examining the postal cover and AD receipts etc. In the circumstances, it would be just and expedient that the petitioner raises her contentions as raised in this petition before the learned trial Court itself. However, in the facts and circumstances of the case, it would be just and expedient that during the trial of the case, the personal appearance of the petitioner on each date of hearing is dispensed with. This, however, would be subject to certain conditions. Crl. Misc. No. M-30577 of 2010 [6] Accordingly, the Crl. Misc. petition is dismissed. However, during the proceedings of the case before the learned trial Magistrate, the personal appearance of the petitioner shall remain dispensed with on each date of hearing which shall be subject to the conditions that the petitioner appears before the learned trial Magistrate and furnishes an undertaking to the effect that she shall have no objection in case the evidence is recorded in her absence, she shall appear on each date of hearing through her counsel and that she shall appear on the material dates when her presence is required before the trial Court for which an intimation shall be given by the learned trial Court to her through her counsel. Noting observed or stated herein shall be construed as an expression of opinion on the merits of the case between the parties and the learned trial Court shall consider the case on the basis of the evidence and material as adduced before it and uninfluenced by any observations made herein. October 14, 2010 (S.S. SARON) JUDGE