JUDGMENT
R.N. Biswal, J.
1. This CRLMC arises out of a petition under Section 482 of Cr.P.C. filed on behalf of the petitioner with a prayer to direct that G.R. Case No. 1909 of 2003 and I.C.C. Case No.586 of 2005 pending before E.B. Rao and R.M. Acharya both Judicial Magistrates First Class Bhubaneswar, respectively shall be tried and decided by one Court one after another.
2. Opposite party No.2 filed I.C.C. Case No.586 of 2005 before the Court of S.D.J.M., Bhubaneswar on the allegation that the petitioner took a friendly loan of Rs.74,000/- from him for construction of her house at Puri with a stipulation that she would repay the loan within a period of one month, but she did not repay the same within the time stipulated. However, after much request and persuasions she handed over to him six cheques of Rs.74,000/- all of which were drawn on the account maintained by her with the State Bank of India, Station Bazar Branch, Puri. Out of the six cheques, the complainant {O.P. No.2) presented three cheques bearing Nos.0672161 dtd. 1.10.2002, 072162 dtd. 1.10.2002 and 072163 dtd. 2.10.2002 of Rs. 10,000/- each to his banker, U. Co. Bank, Suryanagar Branch, Bhubaneswar on 17.1.2003 for collection. All these three cheques were dishonoured because of insufficient funds, which was intimated to the complainant on 28.1.2003. So, on 21.2.2003 he sent a Registered letter through his counsel to the petitioner-accused demanding payment of the cheques-amount of Rs.30,000/- within 15 days of receipt of the notice Even though the petitioner-accused received notice, she did not respond to it. Ultimately the complainant (opposite party No.2) filed the aforesaid complaint case. After recording statement of the complainant, the learned S.D.J.M. was pleased to take cognizance of the offence under Section 138 of the Negotiable Instrument Act (hereinafter referred to as ‘N.I. Act’) against the accused-petitioner and the case was proceeded with. Having been transferred, now the said case is pending before the Court of R. M. Acharya, J.M.F.C., Bhubaneswar.
3. On 6.4.2003 the petitioner filed I.C.C. Case No. 1045 of 2003 before the S.D.J.M., Bhubaneswar, on the allegation that accused No. 1 (Opposite party No.2) who works as a building contractor agreed upon to replace the old roof of her house for a new one on condition that she would pay the money, contracted for the purpose, after the work was over. While the construction was on progress accused No.l (Opp. Party No.2) asked the complainant for payment of Rs.50,000/-, but the complainant expressed her inability to pay such a huge amount at a time and requested him to continue the work on promise that she would pay the same by November 2002 on availing a loan. Accordingly the said accused continued the work but demanded interest at the rate of 3% per month on the said Rs.50,000/-. On being dishonestly induced and persuaded, the complainant handed over 5 numbers of blank cheques to him as guarantee with an understanding that he would return back those cheques on payment of cash. Sometime thereafter, again on being induced by the said accused, the complainant gave him another blank cheque along with a cash of Rs.l5,000/~. After completion of the work accused No.l (Opp.Party No.2) claimed Rs.74,000/- in toto from the complainant, and persuaded her to issue a cheque of the said amount in favour of H. K. Multimedia (accused No.2) of which he claimed to be a partner. On 10.4.2003 the complainant issued an A/c payee cheque of Rs.74,000/- pertaining to Andhra Bank, Baramunda Branch, Bhubaneswar in favour of H. K. Multimedia and handed over it to accused No. 1, which was cleared up on 11.1.2003. Accused No.l did not return back those 5 numbers of blank cheques to the complainant despite her repeated requests. He filed the aforesaid complaint case No.I.C.C. Case No.586 of 2003 utilizing three of the blank cheques. On being requested by the complainant and her brother to make them know about the details of H. K. Multimedia, accused No.3, the Branch Manager Vijaya Bank, Ashok Nagar, Bhubaneswar gave a false address of it. When the complainant and her brother again enquired about the correct address of accused No.2 he became furious. On 3.6.2003 during evening time the complainant and his brother went to the house of accused No.l and requested him to return back Rs.74,000/- since he had already instituted a case under Section 138 of N.I. Act against her. At this he became furious, abused her in filthy language and when her brother protested, he caught hold the collar of his shirt and threatened him and the complainant to kill if at all they would raise any hullah. So, she filed the aforesaid I.C.C. Case No. 1045 of 2003 before the Court of S.D.J.M., Bhubaneswar. The S.D.J.M. forwarded the complaint petition to the I.I.C. of Capital Police Station, directing him to register a case and investigate into it and submit final form. Accordingly the complaint was registered as G.R. Case No. 1909 of 2003 and investigated into. After completion of investigation, charge sheet was submitted under Sections 420/120(B)/294/341/506 I.P.C. against all the three accused persons and the S.D.J.M. took cognizance thereof. Subsequently this case was transferred to the Court of E.B, Rao, J.M.F.C., Bhubaneswar.
4. So, now the present petitioner, Nihar Nalini Nayak is the accused in I.C.C. Case No.586 of 2003 and opposite party Nos.2 and 3 are the accused in G.R. Case No. 1909 of 2003 pending before the Court of R. M. Acharya and E.B. Rao, both Judicial Magistrates, First Class. Bhubaneswar respectively. Claiming the cases to be the counter cases, the petitioner (Nihar Nalini Nayak) has filed the petition under Section 482 Cr.P.C., with the prayer as mentioned earlier.
5. Learned counsel for the petitioner submitted that both the cases arise out of one incident. As per the case of the complainant in I.C.C. Case No.586 of 2003, the accused therein issued five cheques in his favour knowing that there was no sufficient funds in her account. After three of the cheques were dishonoured he issued Registered notice demanding the cheques-amount to the accused-petitioner, but she did not pay the same. The present petitioner filed I.C.C. Case No. 1045 of 2003 on the allegation that the accused persons therein fraudulently managed to obtain those five blank cheques from her, three of which were utilized in filing the false complaint against her. So, the two cases are counter to each other. He further submitted that ‘counter case’ has not been defined in the Criminal Procedure Code and so; there is no provision in the same Code for transfer of such a case from one Court to another. In absence of such provision, the petitioner-accused in I.C.C. Case No.586 of 2005 and complainant in G.R. Case No. 1909 of 2003 has filed the petition under Section 482 Cr.P.C. for a direction for disposal of both the cases by one Court, one after another. To fortify his submission he relied upon the decision in Binayak Mishra and Anr. V. State of Orissa and Anr. reported in 66 (1988) CLT 350, Gundi Sahu and Ors. V. State of Orissa and Ors. reported in 41 (1975) CLT 607 and some other decisions.
6. Per contra learned counsel for the opposite party No.2 submitted that the present cases are not case and counter case since the cheques were issued in the month of October 2002, whereas the occurrence in G.R. Case No. 1909 of 2003 allegedly took place on 3.6.2003. He further submitted that when there is specific provision under Section 408 Cr.P.C. to transfer such a case from one Court to another the petition under Section 482 Cr.P.C. is not maintainable before this Court. In support of his submission he relied upon the decision Rabi Narayan Das V. State of Orissa, reported in 1998 (II) OLR 621 : 86 (1998) CLT 655.
7. The case of the petitioner is that opp. party No.2 cheated and thereby dishonestly induced her to hand over the cheques in blank to him. On the other hand the case of opp.party No.2 is that as the petitioner was liable to pay him money, she voluntarily issued the cheques in his favour. There is one version from one side and Anr. version from other side. Under such situation, in my view the cases are counter to each other. Admittedly both the cases are triable by Magistrate which are pending before two such Magistrates under the same Session Division. If these two cases are tried by two different Courts, there is risk of two conflicting findings. To obviate such risk, it is desirable that both the cases should be tried separately, but by one Court. The Sessions Judge, Bhubaneswar has power to transfer either of the cases to the other Court where the connected case is pending under Section 408 Cr.P.C. The decisions (supra) cited by the learned counsel for the petitioner relate to commitment of a counter case triable by Magistrate to the Sessions Court where the connected Sessions case is pending. The Sessions ‘Judge has no power to commit such case to the Court of Sessions. Admittedly neither of the present cases is triable by the Court of Sessions. So, the decisions as cited on behalf of the petitioner are not applicable to the instant case. In fitness of things the petitioner ought to have filed transfer petition under Section 408 Cr.P.C. before the Sessions Judge, Bhubaneswar instead of filing a petition under Section 482, Cr.P.C. before this Court. As per the decision “Rabindra Narayan Das” (supra) extraordinary power conferred on this Court under Section 482 Cr.P.C. should be exercised in rarest of the rare cases where parties are not left with any other remedy so as to prevent abuse of process of the Court, to give effect to any order under the Court or to secure the ends of justice. Such power should not be invoked or exercised on mere asking. In the case at hand, since the Sessions Judge, Bhubaneswar could have transferred under Section 408 Cr.P.C. either of the cases from one Court to the other Court where the counter case is pending, the power under Section 482 Cr.P.C. cannot be exercised for the same.
Therefore, the petition under Section 482 Cr.P.C. is rejected. If so advised, the petitioner may make a similar prayer before the Sessions Judge, Bhubaneswar. With this observation the CRLMC stands dismissed.