IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 Crl.MC.No. 2336 of 2009 -------------------------------- AGAINST THE ORDER DATED 01/07/2009 IN CRMP.247/09 IN CC.140/2008 of JUDL.FIRST CLASS MAGISTRATE COURT-II, RANNI .................... PETITIONER(S): ACCUSED ------------------------------------- PUSHPAVALLY P.R.,AGED 57 YEARS, D/O.RAGHAVAN,RESIDING AT THIRAMATHU PUSHPANJALI, SEETHTHODU P.O.,PATHANAMTHITTA DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): STATE -------------------- 1. THE STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. N.R.RAJAMMA,VISWAVILASAM HOUSE, VALUPARA,ANGAMOOZHI,PATHANAMTHITTA DISTRICT. PUBLIC PROSECUTOR SRI.VINOD.B. FOR R1. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M. SASIDHARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2336 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of July, 2009 O R D E R Petitioner is the accused in CC No.140/2008 on the file of Judicial First Class Magistrate Court-II, Ranni. Second respondent is the complainant. Learned Magistrate took cognizance of the offence under Section 138 of Negotiable Instruments Act on the complaint filed by the second respondent. At the trial stage petitioner filed CMP No.247/09 under Section 205 of Code of Criminal Procedure to grant him exemption from personal appearance. Under Annexure A1 order learned Magistrate dismissed the petition holding that evidence was partly recorded and thereafter petitioner did not appear and absconded and therefore bail was cancelled and at that stage petitioner is not entitled to get the exemption. Learned counsel appearing for the petitioner was heard. 2. When the petitioner did not appear and bail was cancelled and non-bailable warrant was issued. It is pending. Such an accused is not entitled to get exemption under Section 205 of Code of Criminal Procedure without surrender. Petitioner has to surrender before the Court and thereafter file an application for permanent Crl.M.C: 2336/09 -:2:- exemption, stating the necessary ingredients to satisfy the Magistrate that permanent exemption is to be granted. If evidence is to be recorded, in the absence of the petitioner to grant exemption under Section 205, necessarily he must file an affidavit stating that evidence can be recorded in his absence treating presence of his counsel as his presence and undertaking that the evidence so recorded will not be challenged before that court or in appeal or in revision. If such an affidavit is filed, I find no reason to believe that Magistrate will not grant exemption. With the above observations the petition is disposed of. M. SASIDHARAN NAMBIAR, JUDGE ttb