BRAJABANDHAN MOHAPATRA Vs. SASANKA SEKHAR SENAPATI

JUDGEMENT

(1.) This case arises out of a private complaint. The opposite party herein filed I.C.C. No. 972 of 2006 before the learned S.D.J.M., Bhubaneswar alleging commission of offence under Section 138 of the Negotiable Instruments Act (for short, 'the N.I. Act') to have been committed by the petitioner. After taking cognizance of the offence, summon was issued to the petitioner to appear in the said case. On the date fixed for the appearance, an application under Section 205 of the Code of Criminl Procedure (hereinafter referred to as 'the Code') for dispensing with the personal appearance of the petitioner and for allowing; him to be represented through his advocate, was filed on behalf of the petitioner by the counsel appearing on his behalf. The grounds taken in the said application were that, the petitioner is a busy businessman and mostly remains out of Bhubaneswar for which, it is not practicable on his part to appear in person in Court and that the offence alleged being under Section 138 of the N.I. Act which is bailable in nature and mostly depends on documentary evidence for which, the personal presence of the accused is not very much necessary. Though no written objection to the said petition was filed by the opposite party, but, after hearing on the said application, the learned S.D.J.M., Bhubaneswar on 28.10.2006 rejected the prayer of the petitioner with the following orders:

(2.) After hearing learned counsel for the parties, in extenso, and perusal of the impugned order, I find that the learned S.D.J.M. taking the 'amount' involved in the case into account and relying upon the principles laid down in the decision of the Supreme Court in the case of Mis. Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd. and others, 2001(21) OCR 452 (SC) has rejected the said application.

(3.) A case under Section 138 of the N.I. Act is a summons case. Section 317 of the Code provides as follows: