ANNAPURAM MACHINERY Vs. GAYATRI PARIDA

JUDGEMENT

(1.) THIS is an application under Section 482, Cr. P. C. filed by the petitioner assailing the Order dated 17. 1. 2008 passed by the learned S. D. J. M. , Koraput in i. C. C. No. 80 of 2007, rejecting the petitioner's application under Section 205, cr. P. C.

(2.) OPPOSITE party No. l (complainant) had filed complaint case bearing I. C. C. No. 80 of 2007 before the S. D. J. M. , Koraput under section 138 of the Negotiable Instruments act (for short 'n. I. Act') on the allegation that the petitioner in discharge of its debts had given her a cheque drawn on the State bank of India, Berhampur. Opposite party no. 1 presented the said cheque to her banker i. e. State Bank of India, Sunabeda, but the same was returned by the Bank with the intimation that the cheque has been dishonoured for insufficient funds. After due notice, opposite party No. l filed I. C. C. Case no. 80 of 2007 under Section 138 of the N. I. Act and the learned S. D. J. M. on taking cognizance, issued summons to the petitioner to appear before the Court on 17. 12. 2007. The case of the petitioner is that the petitioner appeared before the learned Magistrate on 17. 12. 2007 and filed an application under Section 205, Cr. P. C. for. dispensing with his personal attendance and to allow him to appear through his counsel. The said application of the petitioner has been rejected by the learned Magistrate vide Order dated 17. 1. 2008 by passing the following order: this is a base under Section 138 of NI act. The accused belongs to outside of this jurisdiction. It reveals from Section 205 (II), Cr. P. C. that the Magistrate has power to direct the accused to ap-pear personally before this Court at any stage of proceedings. Further Section 317, Cr P. C. (I) also empowers the advocate to represent himself on behalf of the accused before this Court at any stage of trial. Hence, the dispense with the personal attendance of the accused before this Court viz. 205 (1), cr. P. C is not applicable, in this stage of the proceeding. Accordingly, the petitioner under Section 205 (1), Cr. P. C. is disposed of and the accused is directed to appear personally before this court within 15 days of this order. "

(3.) THE petitioner has assailed the said order of the learned S. D. J. M. on the ground that the allegation Against the petitioner being one under Section 138 of the NI Act, the learned Magistrate should not have rejected the petitioner's application under Section 205, Cr. P. C. In this regard the petitioner relies on a decision of this Court in the case of Agro Service Center and Another v. State of Orissa and Others wherein this court while discussing the scope and ambit of Section 205, Cr. P. C. has come to the conclusion that the power of the Magistrate under Section 205, Cr. P. C. is discretionary, but such discretion should be exercised judiciously and in the greater interest of justice.