CHANDAN BOSE Vs. SUNIL KUMAR SEN
HIGH COURT OF CALCUTTA
SUNIL KUMAR SEN
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SATYA NARAYAN CHAKRABORTY,J. -
(1.)CRIMINAL Revision No. 403 of 1991 is directed against an order dated 16.2.1991 passed by learned Sub-Divisional Judicial Magistrate, Chandernagar, Hooghly in C.R. Case No.1411 of 1975 (T.R. 408/76) under section 420 of the Indian Penal Code rejecting the prayer of accused petitioner under section 205 of the Code of Criminal Procedure.
(2.)OPPOSITE Party No. 1 filed a petition of complaint against the accused petitioner and one Swati Sen Sharma (accused No. 2) under section 420, I.P.C. on the allegation that the petitioner in his capacity as employee of accused No. 2 had taken delivery of 2 Transformers of 300 KVA and 150 KVA at a price of Rs. 78,000/-. Accused petitioner handed over a cheque of Rs. 10,000/- signed by accused No. 2 and assured the opposite party No. 1 to deliver the transformer saying that the balance amount will be paid by accused No. 2 on delivery at Siliguri, but the cheque was dishonoured. As the petitioner appeared before the Magistrate on 10.2.1976, the warrant of arrest him was against recalled and he was released on bail like the other accused. After charges under section 420, I.P.C. and under sections 420/109, I.P.C. were framed against the two accused respectively, they filed revision case No. 973 of 1981 before the High Court and obtained a rule, but that was discharged on 4.6.1986. Thereafter fresh notice for appearance of the accused was issued on 16.2.1991 and the accused petitioner filed the petition under section 205 of the Code of Criminal Procedure praying for exemption from personal appearance, as he was experiencing great hardship in attending the Court at Chandernagar from Buxarah, Howrah, his place of employment being at Liluah, Howrah and as there was no question of personal identification and he undertook to make himself available when required by Court.
According to the learned Magistrate as warrant of arrest was initially issued against the accused in this case, he cannot claim the privilege under section 205 Cr.P.C. at a subsequent stage.
(3.)THE learned Advocate for the petitioner submitted before me that since the trial was proceeding after framing of charge and the P.Ws. were to be cross-examined only, the prayer for personal exemption ought to have been granted, personal identification of the petitioner not being required.
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