GANESH CHOUDHURY Vs. HARISH CHANDRA MISRA

JUDGEMENT

(1.) Heard learned Counsel for both the parties. On their consent, it is disposed of at this stage of hearing on admission.

(2.) Petitioner is the complainant in ICC No. 30 of 1997 pending in the Court of S.D.J.M., Berhampur. Opposite party is the accused in that case. He is working as Superintending Engineer presently attached to the office of the Chief Engineer, Minor Irrigation Department, Bhubaneswar. It is alleged in the complaint petition that opposite party cheated the petitioner by Rs. 5,000/- (rupees five thousand) by giving false assurance to appoint him as N.A.R. The occurrence dates back to the year 1990 and the complaint petition was filed in the year 1997. After recording the initial statement of the complainant and conducting enquiry under Section 202 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), the S.D.J.M., Berhampur took cognizance of the offence u/S. 420, I.P.C. and issued process under S. 204 of the Code against the opposite party. Opposite party entered appearance through his pleader on 23-7-1997 and filed a petition under S. 205 of the Code for dispensing with her personal appearance and it was allowed vide the order dt. 23-7-1997. Petitioner has challenged legality and correctness of that order by invoking the jurisdiction of this Court under Section 482 of the Code. Learned Counsel for the petitioner stated that in the notice under Section 204 of the Code received by the petitioner, he had been directed to appear personally or through pleader. Learned Counsel for the opposite party did not dispute correctness of that statement.

(3.) Learned Counsel for the petitioner argued that in a criminal trial, where the offence alleged provides for substantive sentence for good length of time, personal appearance of the accused is the rule and dispensing with personal appearance is exception. Lower Court in complete disregard to the settled position of law and being swayed away by the high official position of the opposite party misapplied the discretion in his favour which is abuse of process of law resulting in failure of ends of justice. He thus prayed to quash the impugned order and alternative argued to make it conditional that at the time of trial, opposite party shall appear in person.Learned Counsel appearing for the opposite party argued that the complaint case is out and out a false case set up by the petitioner as a counter blast to G.R. Case No. 970 of 1990 which was registered against the petitioner at the instance of the opposite party. He further argued that the fact and circumstance was duly considered by the S.D.J.M. to pass a reasoned order in allowing the petition under Section 205 of the Code and that in such a matter the complainant has no locus standi to challenge the impugned order inasmuch as this is a matter of subjective satisfaction of the Court.Both the parties relied upon case laws in support of their contentions.