DEBASIS SAMANTARAY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The accused-petitioner has filed this application under Section 482 of the Code of Criminal Procedure, 1973 with a prayer to quash the criminal proceedign in ICC No. 335 of 1999 pendign before the S. D. J. M., Bhubaneswar and also to quash the order dated 13-2-2002 rejecting the prayer for extending the benefit available under Section 205, Cr. P. C. and for recalling the N. B. W. A. issued against the petitioner.

(2.) On the basis of a complaint petition filed by opposite party No. 2, ICC No. 335 of 1999 was registered in the Court of the S. D. J. M., Bhubaneswar against the petitioner for alleged commission of offence by the latter under Section 138 of the Negotiable Instrument Act. After perusing the materials on record, the S. D. J. M. took cognizance of the offence alleged and directed issue of summon on 5-11-2002 against the petitioenr. The petitioner having failed to appear before the Court below. N. B. W. A. was directed to be issued against him. On 13th December, 2002, two petitions were filed on behalf of the petitioner, one for recalling the N. B. W. A. issued against him and the other for dispensing with personal attendance of the petitioner in Court and permitting him to be represented by his advocate. Both the petitions, as stated above, were rejected by the Court below on the ground that there was no straight-jacket formula for exercising the discretion as prayed for and it was to be used in appropriate cases without prejudice to the prosecution and the discretion to be exercised should not be arbitrary. The Court below also observed that exemption of an accused from personally appearing in Court could be done only after his first appearance in Court. Non-appearance of the accused in spite of receipt of summons, according to the Court below, amounted to flouting of the order of Court and should not be encouraged by allowing him to be represented by lawyer.

(3.) Mr. Palit, learned counsel for the petitioner, forcefully submitted that as the petitioner paid all the amounts outstanding against him, the proceeding under Section 138 of N. I. Act is not maintainable. It is also submitted that the Court below while taking cognizance of the offence did not consdier all aspects of the case and the order taking cognizance reveals his non-application of mind, and is therefore liable to be quashed. It is also submitted that absence of the petitioner in the Court below on the date to which the case stood posted was unintentional and was due to inadvertent reasons over which the petitioner had no control. Such non-appearance would not amount to flouting the orders of the Court, the same being not deliberate and the observation of the Court below on that count is also not correct. Mr. Palit also submits that an offence under Section 138 of N. I. Act can be effectually adjudicated on the basis of documents filed by parties and the appearance of the accused on each day is not necessary and the Court below acted illegally and in excess of its jurisdiction in rejecting the petition filed on behalf of the petitioner under Section 205, Cr. P. C. and with material irregularly in not recalling the N. B. W. A. issued as the absence of the petitioner was inadvertent.