Orissa High Court
Debasis Samantaray vs State Of Orissa And Anr. on 18 June, 2003
Equivalent citations: I(2005)BC275, 2003CRILJ3774, 2003(II)OLR219, 2003 CRI. L. J. 3774, (2003) 10 ALLINDCAS 659 (ORI), (2003) 2 ORISSA LR 219, (2004) 1 CIVLJ 243, (2003) 25 OCR 594, (2004) 1 RECCRIR 75, (2005) 1 BANKCAS 275, (2003) 4 ALLCRILR 769, (2004) 1 BANKCLR 515
Author: A.S. Naidu
Bench: A.S. Naidu
JUDGMENT A.S. Naidu, J.
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 proceeding in ICC No. 3351 of 1999 pending 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 later under Section 138 of the Negotiable Instruments 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 petitioner. 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 ah 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 consider 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 irregularity in not recalling the N. B. W. A. issued as the absence of the petitioner was inadvertent.
4. Mr. G. K. Misra, learned counsel for the complainant-opposite party No. 2, on the other hand strongly repudiated the submissions advanced by Mr. Palit. According to Mr. Misra, the Court duly considered all the aspects and being prima facie satisfied that a cognizable offence had been committed by the petitioner, took cognizance of the offence alleged and directed issue of summons. In spite of due service of summons, the petitioner deliberately and mischievously remained absent in Court and thus the Court below had no option but to issue N. B. W. A. The absence of the petitioner, as rightly observed by the Court below, reveals that the petitioner had scant regards for the rule of law. According to Mr. Misra, the Court below has rightly rejected the petition for recalling the N. B. W. A. The order itself reveals that on the basis of the ratio of several decisions, the Court below arrived at the conclusion that allowing a petition under Section 205, Cr. P. C. is discretionary and depends not only on the facts and circumstances of the case, but also the attitude of the accused. In the present case, the petitioner in spite of receiving summons did not appear in Court and the Court below has rightly refused to extend its discretionary power by allowing the petitioner to be represented by his advocate.
5. After hearing learned counsel for both sides and perusing the materials available on record as well as the order taking cognizance, I am satisfied that the Court below has not committed any illegality or irregularity. The complaint petition and other materials unambiguously reveal that there were sufficient prima facie materials to take cognizance of the offence alleged and the Court below rightly took cognizance. I do not find any justification to interfere with the order of the Court below taking cognizance of the offence.
6. Mr. Palit's argument so far as merit of the case is concerned, according to me, need not be answered at this stage, inasmuch as any observation by this Court would amount to pre-judging the issue to be decided by the Court below. The conclusion of the Court below while rejecting the application filed on behalf of the petitioner under Section 205, Cr. P. C. that the N. B. W. A. having been issued, there was no scope for invoking jurisdiction under Section 205(1), Cr. P. C. is not tenable. As would be apparent on a cumulative reading of Sections 205(1), 273 and 311, Cr. P. C., only because N. B. W. A. had been issued, the S. D. J. M. could not have rejected a petition filed under Section 205, Cr. P. C. This also seems to be the settled position of law so far as this Court is concerned, vide Santanu v. State (1999) 17 OCR 239.
7. A perusal of the impugned order dated 13-12-2002 reveals that the S. D. J. M. was labouring under the erroneous impression that before considering the application under Section 205, Cr. P. C., personal appearance of the accused in Court is very much necessary. This point has been clearly answered by this Court in Somanath Misra v. State (1990) 3 OCR 577, relying on several, decisions and it has been held that it is not mandatory for the accused to personally appear in Court before filing the application under Section 205(1), Cr. P. C. The said view was later on reiterated in the case of Kaveri alias Benga alias Sukanti Raikarai v. State (1994) 7 OCR 645 : (1994) 78 Cut LT 881 : (1995 Cri LJ 224). In the said decision, the application for dispensing with personal attendance of the accused in Court under Section 205, Cr. P. C. was considered by High Court in spite of the fact that the accused had been shown as absconder in the charge sheet and N. B. W. had been issued.
The question as to under which circumstances personal attendance of ah accused can be dispensed with had been considered by this Court in the decisions cited supra as well as in Ramesh Ch. Lath v. State (1992) 5 OCR 97 : (1992 Cri LJ 2263), Bikram v. State (1994) 7 OCR 721, Radhanath v. Babulal (1986) 62 Cut LT 445, and last but not the least, Surojit v. Sanatan, (1999) 17 OCR 473. The ratio of the aforesaid decisions is that the power under Section 205(1), Cr. P. C. can be exercised by a Magistrate not only at the stage of issuance of summons to the accused, but also at subsequent stage even after issuance of N. B. W. Law is no more reintegrate that even if an application under Section 205, Cr. P.. C. is rejected at an earlier stage, such petition can be allowed at a subsequent stage by invoking the provisions of Sections 273 and 317, Cr. P. C. Thus, it can be safely concluded that an application under Section 205, Gr. P. C. is maintainable even though the accused has not appeared personally and the Magistrate should not hesitate to extend the discretion only on that ground.
8. The view expressed by me also gets fortified by a decision of this Court in Durowellds Pvt. Ltd. v. TISCO, (2002) 94 Cut LT 726. In the said decision it has been reiterated that if the Magistrate finds that insistence on personal attendance of the accused in the case would cause serious difficulty and inconvenience and the comparative advantage would not overweigh non-appearance, he should allow a petition under Section 205, Cr. P. C. The offence alleged in this case is under Section 138, N. I. Act, the chequ issued by the petitioner in favour of opposite party No. 2 having been dishonoured or bounced by the Bank. The case, as it appears, mostly depends on documentary evidence. As such, appearance of the accused petitioner on each date to which the case stands posted need not be insisted upon by the Magistrate. But then if, according to the Magistrate, during the trial presence of the accused becomes necessary, he is loathed with power under Sub-section (2) of Section 205, Cr. P. C. to direct his attendance in Court. In other words, for effectual trial, if the presence of the accused alleged to have committed the offence under Section 138, N. I. Act becomes necessary, it will be open to the Court below to insist on his personal attendance in Court.
9. In the light of the discussions made above, I have no hesitation to set aside the order of the S. D. J. M. dated 13-12-2002 rejecting the petitioner's application to dispense with his personal appearance and to recall the N. B. W. A. and direct the S. D. J. M. to consider the. application filed on behalf of the petitioner under Section 205, Cr. P. C. afresh and to dispense with the personal attendance of the petitioner in Court on his giving an undertaking to the satisfaction of the S. D. J. M. that the counsel on behalf of the petitioner shall be present in Court throughout the proceeding and that the petitioner will have no objection if evidence being taken in his absence and further that he will personally appear in Court as and when he is required to do so, and I order accordingly.
10. Mr. Palit assures before this Court that the petitioner will co-operate in the trial as directed.
I further direct the S. D. J. M. to conclude the trial of ICC No. 335 of 1999 expeditiously, preferably by the end of the year 2003.
The Criminal Miscellaneous Case is disposed of.