IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 Crl.MC.No. 2602 of 2009() ------------------------- LP.71/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... PETITIONER(S): ACCUSED: ----------------------------------------- SREEKRISHNAN, AGED 35 YEARS, S/O. CHANDRASEKHARAN, KALATHIL HOUSE, MANATHALA VILLAGE, CHAVAKKADU TALUK, TRICHUR. BY ADVS. MR.V.JOHN SEBASTIAN RALPH, SMT.PREETHY KARUNAKARAN. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. URBAN CHITS (P) LTD., RICE BAZAAR, TRICHUR-1, REPRESENTED BY MR. UNNIKRISHNAN. R1 BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2602 of 2009 -------------------------- ORDER Petitioner is the accused in a case, now pending as L.P.No.71/2008 on the file of Judicial First Class Magistrate's Court-II, Thrissur consequent to his failure to appear before the court. Allegation against the petitioner is that he committed offence under Section 138 of Negotiable Instruments Act. Petitioner, through counsel, filed Annexure-1 petition under Section 205 of Code of Criminal Procedure for dispensing with his presence at the time of trial. Case of the petitioner is that he is employed in a private concern and it is difficult for him to appear before the court on all posting dates and therefore, he is to be permitted to appear through a counsel. Learned Magistrate dismissed the petition without a speaking order. This petition is filed under Section 482 of Code of Criminal Procedure to quash that order contending that learned Magistrate has not considered the decision of this court in Jain Babu v. Joseph (2008 (4) KLT 16). 2. Learned counsel appearing for the petitioner was heard. CRMC 2602/09 2 3. An accused, who is facing trial for an offence under Section 138 of Negotiable Instruments Act, is entitled to appear and contest the case through counsel. But, when a petition under Section 205 of Code of Criminal Procedure is filed to dispense with his presence at the time of trial, petitioner shall unambiguously undertake that his presence need not be there at the time of recording the evidence and on his behalf his counsel will be present and presence of his counsel could be treated as his presence and the evidence so recorded will not be challenged either in that proceedings or in appeal or in revision. Annexure- 1 petition does not contain these mandatory recitals. In such circumstances, I find no reason to interfere with the order passed by the learned Magistrate. If petitioner files a proper application in accordance with law, Magistrate to consider the same in the light of the decisions rendered by this Court and the Apex Court and pass appropriate order in accordance with law. Petition is disposed. 14th August, 2009 (M.Sasidharan Nambiar, Judge) tkv