Equivalent citations: AIRONLINE 2015 BOM 3
Subhash Atmaram Sharma And Anr vs The State Of
Maharashtra And Anr
on 20 March, 2015
Author: M.L. Tahaliyani
Bench: M.L. Tahaliyani
7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.992 OF 2014
Oral Judgment:
Admit. By consent of the parties taken up forthwith for final hearing.
2. Heard learned counsel for the respective parties. Perused 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.
Subhash Atmaram Sharma And Anr vs The State Of Maharashtra And Anr on 20 March, 2015
Indian Kanoon - http://indiankanoon.org/doc/106959354/ 2
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 7_apl_992_2014_jud.doc 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.
5. 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
7_apl_992_2014_jud.doc 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.
6. There may be cases where the execution of bond may not 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 7_apl_992_2014_jud.doc 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 substantial work like hearing of
main cases.
Subhash Atmaram Sharma And Anr vs The State Of Maharashtra And Anr on 20 March, 2015
Indian Kanoon - http://indiankanoon.org/doc/106959354/ 3
7. As far as the present case is concerned, the order of the 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 7_apl_992_2014_jud.doc 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.
8. The application stands disposed of accordingly.
(JUDGE)
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