Neutral Citation No. - 2025:AHC:17865 Court No. - 77 Case :- APPLICATION U/S 528 BNSS No. - 28623 of 2024 Applicant :- Abhimanyu Shukla Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rakesh Kumar Mishra,Vijit Saxena Counsel for Opposite Party :- G.A.,Pusp Raj Singh Hon'ble Arun Kumar Singh Deshwal,J. 1. Heard Sri Vijit Saxena, learned counsel for the applicant, Sri Pusp Raj Singh, learned counsel for opposite party no.2 and Sri Rajeev Kumar Singh, learned AGA for the State. 2. The present application has been filed to quash the order dated 16.08.2024 in Case No.420 of 2024, Vivek Singh Vs. Abhimanyu Shukla, under Section-138 of Negotiable Instruments Act, 1881, Police Station- Kotwali Nagar, District-Banda, pending in the court of Special Judicial Magistrate, II, Banda. 3. From perusal of record, it appears that applicant has earlier approached this court through Application u/s 482 No.22759 of 2024 challenging the entire proceeding of Case No.420 of 2024 as well as summoning order. This application was disposed of vide order dated 26.07.2024 with direction to the applicant that he will appear before the court below, within a period of two weeks and, thereafter, he will participate in the trial with a further direction that for a period of two weeks, non-bailable warrant shall remain stay. 4. Present application was filed by the applicant with the prayer challenging the order dated 16.08.2024 by which objection with regard to the maintainability of complaint was rejected vide order dated 16.08.2024 on the ground that applicant has not appeared before the court below in compliance of the earlier order dated 26.07.2024 of this court passed in Application u/s 482 No.22759 of 2024 and it was also observed by the court below that applicant has not cooperated in trial though there was specific direction of Hon'ble High Court that trial should be concluded, within a period of six months. This court vide order dated 05.09.2024 directed the District Judge, Banda to submit report why the non-bailable warrant has been issued against the applicant despite the order dated 26.07.2024 by which non-bailable warrant was kept in abeyance. 5. In pursuance of the order of this court, District Judge, Banda has submitted his report mentioning therein that applicant has not appeared before the court below within a period of two weeks in compliance of order dated 26.07.2024 and pressed his application through his counsel. It is further mentioned in the aforesaid report that immediately after receiving the copy of the order dated 26.07.2024, non-bailable warrant was recalled and applicant was directed to appear before the court below on 13.08.2024. Thereafter, again that matter was posted on 16.08.2024 but the applicant did not appear before the court below and moved an application no.24Ka which was rejected by the impugned order. It was further mentioned that though after rejection of the impugned order, non-bailable warrant was issued against the applicant but subsequently on receiving the order dated 05.09.2024, the non-bailable warrant issued against the applicant has been recalled on 02.08.2024. Therefore, if the applicant appears before the court below then proceeding will be concluded, expeditiously in compliance of order of this court dated 26.07.2024. At this stage, learned counsel for the applicant has submitted that complaint is itself not maintainable being premature, therefore, this question should be decided first and he will appear before the court below. 6. Per contra, learned counsel for opposite party no.2 has opposed the prayer and submitted that trial of this case has been pending since 2019 and because of the non-cooperation of the applicant, trial could not be concluded and all defence of the applicant can be considered during trial. 7. Learned AGA has also adopted the argument of learned counsel for opposite party no.2. 8. Considering the aforesaid submission, present application is disposed of with a direction that the applicant will appear before the court below within a period of 15 days and execute a bond that he will continue to appear before the court below. It is also open for the applicant to move an application u/s 205 Cr.P.C. after execution of aforesaid bond for exempting him from personal appearance and the court below will pass an order on that application in accordance with law, keeping in mind the observation of Apex Court in the case of Sharif Ahmed & Another Vs. State of U.P. & Another reported in 2024 SCC OnLine SC 726. Paragraph no.47 of the said judgement is being quoted as under: “47. 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 should not be read in a restrictive manner as applicable only after the accused has been granted bail. This Court in Maneka Sanjay Gandhi v. Rani Jethmalani held that the power to grant exemption from personal appearance should be exercised liberally, when facts and circumstances require such exemption. 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.” 9. Thereafter, applicant is free to raise all grounds during trial and court below will proceed to conclude the trial, within a period of six months as earlier directed by this court vide order dated 26.07.2024 passed in Application u/s 482 No.22759 of 2024. Order Date :- 7.2.2025 S.Chaurasia Digitally signed by :- SHUBHAM CHAURASIA High Court of Judicature at Allahabad