IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 13TH MAY 2008 / 23RD VAISAKHA 1930 Crl.MC.No. 1880 of 2008 ---------------------------------- C.C.68/2008 OF JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA. .................... PETITIONER/ ACCUSED: ----------------------------------- O.K. BIJU, OLIKKATHANDEL, MARADI VILLAGE, MUVATTUPUZHA. BY ADV. SRI.R.BINDU SASTHAMANGALAM. RESPONDENT/ STATE: --------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.C. SANTHOSH KUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/05/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. K.MOHANAN, J. --------------------------------------------- Crl.M.C. No. 1880 of 2008 ---------------------------------------------- Dated this the 13th day of May, 2008 ORDER The petitioner herein is the accused in CC No.68/2008 on the files of the judicial First Class Magistrate Court-II, Muvattupuzha which is a case instituted upon a private complaint for the offences punishable under Section 138 of the Negotiable Instruments Act. The prayer in this petition is to set aside the order of the court below dated 26.04.2008, by which his absent application was rejected and his bail bond was cancelled and issued non bailable warrant. 2. Counsel for the petitioner submitted that there was no willful latches or negligence on the part of the petitioner in appearing before the court on 26.04.2008 and the petitioner was regularly appearing on all other posting dates. According to the petitioner, on 11.03.2008, the case was posted for evidence on which date he was present but the complainant was absent and hence the case was adjourned to 09.04.2008 and thereafter it was CRMC No. 1880 OF 2008 2 further adjourned to 25.4.2008. On 25.4.2008, the complainant was examined and the case was adjourned to 26.04.08 for questioning the accused under Section 313 Cr.P.C. But, on that day the accused petitioner did not appear before the court which resulted in the impugned order. I find no fault with the order of the court below, since the matter was specifically posted for the questioning of the petitioner/accused under Section 313 Cr.P.C. 3. But, having considered the entire facts and circumstances of the case, I am of the view that this Crl.M.C can be disposed of directing the petitioner to surrender before the court below with a prayer to enlarge him on bail and to recall the non-bailable warrant on condition that the petitioner/accused pay a sum of Rs.1,500/- in the court below and the learned Magistrate is directed to consider the bail application in favour of the petitioner. As the matter relates to Section 138 offence, the custody of the petitioner is not required for any purpose and there is no ground to hold that the Magistrate will not consider the prayer for bail. In the result, this Crl. M.C is disposed of directing the CRMC No. 1880 OF 2008 3 Judicial First Class Magistrate Court, Muvattupuzha to consider the bail application of the petitioner and to recall the non-bailable warrant on his surrendering and moving such a petition on the same day, provided on paying the cost of Rs.1,500/- along with the petition. V.K.MOHANAN, (JUDGE) ttb