Hemalata Mohapatra vs Bijaya Kumar Pradhani
2021 Latest Caselaw 11279 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                            CRLMC No.1307 of 2021


            Hemalata Mohapatra                      ....        Petitioner

                                                  Mr. Amit Prasad Bose,
                                                  Advocate


                                       -versus-
            Bijaya Kumar Pradhani                   ....    Opposite Parties
                                                  Mr.M.K.Das, Advocate.

            CORAM:

                      JUSTICE SASHIKANTA MISHRA


                                      ORDER

03.11.2021.

Order No.

4. 1. This matter is taken up through hybrid mode.

2. The Petitioner in the present application under Section 482 Cr.P.C. assails the order dated 26th July, 2021 passed by the learned S.D.J.M., Puri in I.C.C. Case No.335/2020 whereby, his petition in the court below seeking dismissal of the proceeding on the ground of invalid notice under Section 138 of the N.I. Act was not considered and the Petitioner was directed to appear before the Court personally.

// 2 //

3. Bereft of unnecessary details, the facts of the case are that the Petitioner is the sole accused in the above mentioned complaint case filed in the court below by the Opposite Party under Section 138 of the N.I. Act. The case of the complainant is that the Petitioner had issued three cheques, in all amounting to Rs.14,00,000/-(Rupees fourteen lakhs) against refund of security money as per house rent agreement dated 18th March, 2019 executed by her in favour of the complainant. The Petitioner issued three cheques, i.e. Rs.4,00,000/- dated 20th July, 2020, Rs.5,00,000/- dated 30th July, 2020 and Rs.5,00,000/- dated 25th July, 2020. However, all the three cheques being presented at the concerned Bank came to be dishonoured because of insufficient funds. The complainant thereafter served a legal notice dated 6th November, 2020 (Annexure-2) calling upon the Petitioner to pay the cheque amount of Rs.14,00,000/-(Rupees fourteen lakhs) along with the entire cost of proceeding, interest and legal fee. Since the Petitioner did not pay the cheque amount, the complaint in question was filed by the complainant under Section 138 of the N.I. Act.

4. During pendency of the case, a petition was filed (Annexure-4) with prayer to dismiss the case on the ground that the demand notice issued under Section 138(b) of the N.I. Act is invalid as the same also contains demand for payment of legal fees.

// 3 //

Written objection was filed to the said petition filed vide Annexure-5 by the complainant repelling the contention of the Petitioner on the ground that the legal notice in question was issued as per the statutory provision.

5. The Petition was heard by the court below on 26.7.2021, but it was held that the prayer raised by the accused-Petitioner will be decided during the time of trial. Further, by the same order, the accused-Petitioner was directed to appear before the court personally on a date when the matter was posted for consideration of charge.

6. Heard Mr. Amit Prasad Bose, learned counsel for the Petitioner, and Mr. M.K.Das, learned counsel for the complainant-Opposite Party.

7. Assailing the impugned order Mr. Bose contends that the learned court below committed manifest error in not considering the petition under Annexure-4 on merits and deferring the decision thereon to be taken at the time of trial of the case. Referring to some judgments of the Apex Court, Mr. Bose further argues that if the contentions advanced by the accused-Petitioner are accepted it would result in the complaint case being dismissed at the threshold on the point of maintainability and, therefore, the same goes to the root of the matter.

// 4 //

8. It is also argued by Mr. Bose that the personal appearance of the accused-Petitioner having earlier been dispensed with by the court below by allowing his petition under Section 205 of the Cr.P.C. directing him to appear personally again is not legally sustainable.

9. Per contra, Mr. M.K.Das, learned counsel appearing for the complainant-Opposite Party argues that the statutory demand notice issued by the complainant vide Annexure-2 calling upon the accused-Petitioner to pay the cheque amount is entirely as per the statutory requirement and that the accused-Petitioner has sought to challenge it on technical grounds, which cannot be sustained.

10. Reading of the impugned order reveals that the learned court below has noted the fact of filing of petition dated 2nd July, 2021 (Annexure-4) but instead of passing any order thereon, it was held that the prayer raised by the accused- Petitioner will be decided during the time of trial. Thus, no order on the petition as such has been passed by the Trial Court, the correctness of which can be decided by this Court in the present application. This Court, therefore, holds that the challenge to the impugned order is premature.

11. The other contention advanced by Mr.Bose is that having once been allowed the benefit under Section 205 of the Cr.P.C., the court below could not have directed the accused-Petitioner to appear in person. It goes without saying that dispensation of

// 5 //

personal attendance of the accused as per Section 205 of the Cr.P.C. is not an absolute benefit but stands qualified by the restrictions contained therein. For immediate reference , the provision under Section 205 of the Cr.P.C. is quoted herein below:-

"205. Magistrate may dispense with personal attendance of accused- (1) Whenever a Magistrate issues a summon, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.

(2) But the Magistrate inquiring into or trying the case, may in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided."

A plain reading of sub-section (2) makes it abundantly clear that even after dispensing with the personal attendance of the accused, the court may at any stage of the proceeding direct his personal attendance of the accused. Reference to the impugned order shows that the accused was directed to appear personally for consideration of charge which, needless to mention is a valid reason. Therefore, this Court finds no infirmity in the order of the court below.

12. It is thus, held that the instant application in so far as it seeks to challenge the order passed in relation to the petition filed by the accused-petitioner under Annexure-4 is premature

// 6 //

and hence, not entertainable by this Court. As regards the challenge to the impugned order directing personal attendance of the accused-Petitioner, this Court, as already stated herein before finds no justified reason to interfere.

13. The petition under Section 482 of the Cr.P.C. is thus disposed of with a direction to the trial court to dispose of the petition filed by the accused vide Annexure-4 on merits after hearing both parties. However, the impugned order in so far as it relates to directing personal attendance of the accused is confirmed.

Urgent certified copy of this order be granted on proper application.

(Sashikanta Mishra) Judge

A.K.Behera