IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 25TH MAY 2007 / 4TH JYAISHTA 1929 Crl.MC.No. 1096 of 2007() ------------------------- CC.1336/2003 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... PETITIONER: ACCUSED --------------------------------- PRADEEP P. SHET, PROPRIETOR, MAHALSA SERVICES, 7-22, KURTARKAR COMMERCIAL ARCADE, NEAR CANARA BANK, PONDA, GOA. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS: COMPLAINANT ------------------------- 1. KURIAN JOSEPH, S/O. JOSEPH, KODUMPANAPURAYIDATHIL VEEDU, LALAM VILLAGE, MEENACHIL TALUK. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/05/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.MC.No.1096 of 2007 ---------------------------------------- Dated this the 25th day of May 2007 O R D E R The petitioner faces indictment in a prosecution under Section 138 of the Negotiable Instruments Act. The learned Magistrate had, rightly according to me, granted exemption from personal appearance for the petitioner. When the matter came up for trial, the learned Magistrate insisted on the personal appearance of the petitioner. According to the petitioner, this insistence was unnecessary and unjustified. The learned counsel for the petitioner categorically undertakes that the petitioner does not want to dispute his identity. In these circumstances, it is submitted that it is unnecessary to insist on the personal appearance of the petitioner. 2. It is not necessary to advert to the other disputes raised in this Criminal Miscellaneous Case in the light of the specific stand taken by the learned counsel for the petitioner. The learned counsel for the petitioner only prays that exemption from personal appearance may be permitted to remain in force until further orders. He further prays that the cancellation of bail on the ground that the petitioner has not entered Crl.M.C.No.1096/07 2 appearance may be set aside. He further submits that the counsel may be permitted to represent him and complete the proceedings. 3. I am satisfied that the above requests can be accepted. The petitioner shall, within ten days from this date, file a statement duly countersigned by his counsel that he does not want to dispute his identity in the trial . If such statement is filed, the learned Magistrate shall permit the petitioner to continue to be represented by his counsel and take part in the proceedings. The order canceling bail shall stand set aside and the bail bond shall remain in force until further orders to be passed. 4. This Criminal Miscellaneous Case is, in these circumstances, allowed to the above extent. This order shall not fetter the powers of the Magistrate for appropriate and compelling reasons to be recorded in writing to cancel the bail and direct personal presence of the petitioner before court. (R.BASANT, JUDGE) jsr Crl.M.C.No.1096/07 3 The short grievance of the petitioner is that he who faces indictment under Section 138 of the Negotiable Instruments Act; who does not dispute his identity in the prosecution and who has been exempted from personal appearance is being dragged to court unnecessarily for the progress of the trial when his personal appearance is absolutely unnecessary. I have been Crl.M.C.No.1096/07 4 taken through the ordersheet. I find merit in the grievance of the petitioner. I am satisfied that a report must be called for from the learned Magistrate as to why personal presence of the accused is being insisted unnecessarily and why the accused is being called upon to pay the cost to the complainant even on a date like 06/12/2006 when the complainant was himself absent before court. The report must reach this court by 23/05/2007. Till that date, the learned Magistrate shall not insist on the personal presence of the accused except for reasons to be recorded in writing. The trial shall proceed otherwise in the absence of the petitioner till 23/05/2007 if his counsel appears for him. The non-bailable warrant which is issued against the petitioner shall be recalled and shall not be executed till 23/05/2007. Hand over copy of this order to the learned counsel for the petitioner. Crl.M.C.No.1096/07 5 R.BASANT, J C.R.R.P.No. ORDER 21ST DAY OF JULY 2006