IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 Crl.MC.No. 3689 of 2009() ---------------------------------- AGAINST THE ORDER DATED 07/02/2009 IN CMP 169/09 & 170/09 IN ST.482/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PATTAMBI .................... PETITIONER(S): ----------------------- E.M.UNNIENKUTTY @ CHERIYATH, S/O. AHAMMED, MANODIKAYIL VEEDU, POST PAZHOOR, KOOLIMADU, KOZHIKODE. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. E.MUHAMMEDUNNI, MANAGING PARTNER, SALEEM WOOD INDUSTRIES, KOPPAM, BY POWER OF ATTORNEY HOLDER P.IBRAHIM, S/O. MOIDEENKUTTY, PARATHODI HOUSE, VENGAD. BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: mns M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3689 OF 2009 ------------------------------------------ Dated 17th November 2009 O R D E R Petitioner is the accused in S.T.482/2005 on the file of Judicial First Class Magistrate, Pattambi. Non bailable warrant is pending against him. Petitioner filed C.M.P.169/2009 for exemption under Section 205 of Code of Criminal Procedure and C.M.P.170/2009 to re-call the non bailable warrant. By Annexure-A4 order petition was dismissed. This petition is filed under Section 482 of Code of Criminal Procedure to quash the order contending that as the offence alleged against petitioner is under Section 138 of Negotiable Instruments Act, as held by this court in Jain Babu v. Joseph (2008 (4) KLT 16, learned Magistrate should not have dismissed the application filed for exemption under Section 205 of Code of Criminal Procedure as well as the application to re-call the non bailable warrant. 2. Learned counsel appearing for the petitioner was heard. Crmc 3689/09 2 3. Annexure-A4 order shows that learned Magistrate dismissed the petitions only on the ground that petitioner did not appear, even though the case was originally posted to 7/11/2005 and coercive steps were taken and finding that therefore, he is not entitled to get personal exemption from appearance or get the non bailable warrant re-called. Learned counsel pointed out that very same Magistrate by Annexure-A5 order allowed similar petitions in S.T.619/2006 filed by another complainant and in such circumstances, Annexure-A4 oder is to be quashed. 4. This court in Janin Babu's case (supra) elaborately considered the question whether an accused against whom cognizance is taken for the offence under Section 138 of Negotiable Instruments Act is entitled to get exemption under Section 205 of Code of Criminal Procedure and whether it could be granted in favour of an accused against whom a non bailable warrant is pending. It was held that fact that non bailable warrant is pending shall not preclude the court from granting exemption under Section 205 and the very fact that accused is facing trial for an offence under Section 138 of Negotiable Instruments Act, which is not an Crmc 3689/09 3 offence involving moral turpitude by itself is a ground to exercise the power under Section 205 of Code of Criminal Procedure. Similarly, in Rohit S.Ved v. State of Kerala (2008 (4) KLT 671) the same position was re-iterated. In such circumstances, learned Magistrate was not justified in dismissing the petition for the reason that non bailable warrant is pending or that in spite of coercive steps petitioner did not appear. Annexure-A4 order is therefore quashed. Petition is disposed. Judicial First Class Magistrate, Pattambi is directed to re-consider C.M.P.169/2009, in the light of the decisions of this court in Rohit case and Jain Babu's case (supra) and pass appropriate orders in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.