S.C. Parija, J.
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. Opp. Party No. 1 (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 Instrument 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 dishonored for insufficient funds. After due Notice, opposite party No. 1 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 N.I. Act. The accused belongs to outside of this jurisdiction. It reveals from Section 205(11). Cr.P.C. that the Magistrate has power to direct the accused to appear personally before this Court at any stage of proceedings. Further Section 317(1), Cr.P.C. 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 petition 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 N.I. 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 Anr. v. State of Orissa and Ors. I (2005) BC 308 : 2004(1) OLR 137, 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, Gr.P.C. is discretionary, but such discretion should be exercised judiciously and in the greater interest of justice.
4. The personal attendance of an accused should not be insisted upon unless it is absolutely necessary in the proceeding. In the instant case, the offence alleged against the petitioner being one under Section 138 of the N.I. Act, the same is distinctly separate from offences under the other Acts and a case under Section 138 of the N.I. Act can be effectually adjudicated even in the absence of the accused persons on the basis of documents available. This subtle difference has to be kept in mind by the Magistrate while deciding an application under Section 205, Cr.P.C.
5. In the case of Surojit Sen v. Sanatan Behera (1999) 17 OCR 473, this Court has held that the power under Section 205(1), Cr.P.C. can be exercised not only at the stage of issuing summon, but at a subsequent stage before having regard to the facts and circumstances of the case and the Magistrate should liberally allow an application under Section 205, Cr.P.C., if the personal attendance of the accused is not very much necessary.
6. In view of the reasons as aforesaid, the impugned order of the learned S.D.J.M., Koraput dated 17.1.2008, passed in I.C.C. No. 80 of 2007 is quashed and the petitioner is permitted to be represented through his Advocate under Section 205, Cr.P.C. and the petitioner shall appear before the learned Magistrate, as and when required during the trial of the case.
7. The Crl. Misc. Case is accordingly allowed.