ORDER
This petition under section 482 of the Code of Criminal Procedure, 1973, is directed against the order dated 30-3-2002, whereby the petitioner along with others have been summoned for the offence punishable under section 276AB read with section 278B of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).
2. The learned counsel for the petitioner submits that the agreement in question was executed in the year 1996 and that the entire payment has already been refunded to the intending purchasers, therefore, agreement was never acted upon; the property in question was situate in Faridabad, therefore, courts at Delhi have no jurisdiction; no notice was even given to the petitioner, therefore, complaint is liable to be quashed.
3. Notice. Mr. R.D. Jolly accepts notice on behalf of the respondent.
4. Admittedly, the petitioner has so far not approached the trial court. The petitioner may raise all these pleas before the trial court and seek recalling the order of the summoning in terms of the Supreme Court’s judgment in K.M. Mathew v. State of Kerala AIR 1992 SC 2206. In the absence of an order on the application for recalling, in my view, no case for interference against the order of summoning is made out.
5. At this stage, the learned counsel for the petitioner argued that the petitioner is an old man of about 69 years of age having clean antecedent; he has been keeping ill-health, therefore, he be permitted to appear through a lawyer, who has full instructions of the case and whose power of attorney is on record; he would not seek any adjournment on the ground of lack of instructions; identity of the petitioner qua witnesses is not disputed; petitioner’s lawyer would be present on each and every date of hearing and no adjournments on account of absence of the petitioner or otherwise would be sought. It is further argued that the petitioner would be present whenever required and, therefore, he be permitted to appear through lawyer.
6. In view of the above, the petitioner may move an appropriate application before the trial court. If the above conditions are satisfied, the trial court shall consider such exemption application favorably.
7. With the above directions, the petition stands disposed of.