JUDGMENT

A. S. NAIDU, J. — 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. 335 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 CrPC 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 the 1999 was registered in the Court of the S.D.J.M., Bhubaneswar against the petitioner for alleged commission of offence by the latter under Section 138 of the Negotiable Instruments Act. After perusing the materials on re¬cord, the S.D.J.M. took cognizance of the offence alleged and directed issue of summons 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 exercis¬ing the discretion as prayed for and it was to be used in appro¬priate cases without prejudice to the prosecution and the discre¬tion to be exercised should not be arbitrary. The Court below also observed that exemption of an accused from personally ap¬pearing 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, force¬fully submitted that as the petitioner paid all the amounts out¬standing 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 unintention¬al 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 CrPC and with material irregu¬larity 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 peti¬tioner 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