Neeraj Mishra vs State of U.P. and Another

The present application has been filed by the applicant for quashing the order dated 18.02.2025 including further proceeding of the Complaint Case No.62715 of 2024, under Section 138 N.I. Act.

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It is submitted by learned counsel for applicant that ends of justice would be served if the applicant is permitted to appear before the court concerned through counsel in terms of Section 228 BNSS.

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3-A. Learned counsel for the applicant submits that applicant undertakes to ensure presence of his Counsel/Pleader before the court concerned on each date fixed. It is further submitted that the applicant shall not seek any unnecessary adjournment and will participate in the trial court proceedings through the Advocate/Pleader. It is further submitted that the applicant will have no objection in the event the evidence is recorded in the presence of Advocate/Pleader of the applicant.

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The applicant is subjected to prosecution for the following offence:-

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(i) The applicant is subjected to an offence under section 138 Negotiable Instruments Act, 1881. The punishment provided under the aforesaid Section is for imprisonment for a term which may extend to two years.

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The present case arises out of dishonour of cheque. It is not the case of

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the State that the applicant has any previous criminal history or the applicant may tamper with the evidence. It has also not been suggested on behalf of opposite party that the applicant would flee away from justice or that applicant has not co-operated at the time of investigation.

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The Supreme Court in the case of Sharif Ahmed and Another Vs. State of Uttar Pradesh and Another, 2024 INSC 363 in respect of granting exemption from personal appearance has held as under in paragraph 47:-

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" Further, the observation that there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code [Section 205 of the Code. also see Section 317 of the Code] should not be read in a restrictive manner as applicable only after the accused has been granted bail. This Court in Maneka Sanjay Gandhi and Another v. Rani Jethmalani (1979) 4 SCC 167, held that the power to grant exemption from personal appearance should be exercised liberally, when facts and circumstances require such exemption. [see also, Puneet Dalmia v. Central Bureau of Investigation, Hyderabad, (2020) 12 SCC 695]. Section 205 states that the Magistrate, exercising his discretion, may dispense with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. While provisions of the Code are considered to be exhaustive, cases arise where the Code is silent and the court has to make such order as the ends of justice require. In such cases, the criminal court must act on the principle, that every procedure which is just and fair, is understood as permissible, till it is shown to be expressly or impliedly prohibited by law. "

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Considering the nature of controversy, it is directed that in case application in terms of Section 228 of BNSS is filed by applicant, the court concerned to dispense with the personal attendance of applicant and the applicant be permitted to appear through pleader/counsel subject to the following conditions:-

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(a) The applicant shall appear before the court concerned through counsel on the next date or within 20 days from today whichever is earlier. In default, the present order and direction shall automatically stand vacated.

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(b) The applicant shall execute bond with or without sureties for his

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appearance to the satisfaction of the court concerned in terms of Section 91 of BNSS. In default, the present order and direction shall automatically stand vacated.

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(c) The applicant shall on affidavit submit his permanent address as well as the current address of residence before the court concerned within 15 days from today. The applicant shall also submit before the court concerned the contact number (if any) of the applicant as well as the e- mail address (if any) of the applicant.

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(d) The applicant shall also submit an affidavit before the court concerned that he would not tamper with the evidence or threaten the witnesses during the pendency of the trial.

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(e) In the event, the applicant changes address of residence, he shall submit an affidavit with regard to change of address within two weeks before the court concerned.

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(f) It shall be the duty of the applicant to ensure that the pleader/counsel engaged by the applicant is present before the court concerned on the date fixed without exemption. The failure on the part of the pleader/counsel to appear before the court concerned when the matter is taken up will be construed as absence of applicant and the court concerned, thereafter, would be at liberty to take such measures for enforcing the personal attendance/personal appearance of the applicant as may be required under law.

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(g) The applicant shall not seek any unnecessary adjournment before the court concerned. In the event, the counsel/pleader engaged by applicant is not available, it shall be the duty of the applicant to engage another counsel and ensure that the newly engaged counsel is present before the court concerned for progress of the case.

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(h) The court concerned at any stage of proceeding can direct personal attendance of applicant by order in writing and that if necessary enforce such attendance in accordance with law. It is further provided, where court concerned issues any summon or warrant on account of absence of counsel for applicant before the court concerned or in respect of any other

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matter, the police authorities shall be obliged under law to execute the summon or warrant and ensure the attendance of the applicant before the court concerned.

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(i) Whenever the court concerned directs personal attendance of the applicant before the court concerned, it shall be duty of the applicant to remain present before the court concerned and to ensure that the trial court proceedings are not adjourned on account of absence of the applicant. It shall be the duty of the counsel engaged by applicant to inform the applicant with regard to the progress of the case and, in the event, the personal attendance of the applicant is required. The noncommunication by the counsel for the applicant about the progress of the case or the order of the court concerned for personal attendance of the applicant shall not be permissible as defence on behalf of the applicant.

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(j) The prosecution/police authority/complainant shall ensure that the witnesses are produced before the court concerned without delay as and when directed by the court concerned.

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(k) The court concerned shall not grant any unnecessary adjournment to any of the parties.

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(l) The court concerned will be at liberty to take coercive measures in accordance with law where the applicant is found to be tampering with the evidence or delaying the trial without any justification.

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Subject to the aforesaid observations/directions, the present application under Section 528 BNSS stands disposed of .

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(Vikram D. Chauhan,J.)

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November 25, 2025 D. Tamang

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Digitally signed by :- DHIRENDRA TAMANG High Court of Judicature at Allahabad

Neeraj Mishra v. State of U.P. and Another

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Neeraj Mishra v. State of U.P. and Another

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