IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 OP(Crl.).No. 36 of 2011(Q) -------------------------- CC.185/2007 of JUDL. FIRST CLASS MAGISTRATE COURT, KAYAMKULAM .................... PETITIONER/PETITIONER/ACCUSED --------------------------------------------------- K.P.VARGHESE, S/O.K.V.PETER, AGED 49 YEARS, WELGATE GARDENS, KURAVANKONAM, PATTAM PALACE.P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.D.SAJEEV SMT.LIGEY ANTONY RESPONDENTS/COUNTER PETITIONERS/COMPLAINANT ----------------------------------------------------------------------------------- 1. BABY SAMYUKTHA, AGED 45 YEARS, D/O.LAKSHMIKUTTY, KOILLAMMURIYIL HOUSE, KAPPIL WEST, KRISHNAPURAM, FROM RADHA NIVAS, KAPPIL WEST, KRISHNAPURAM. 690 533. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK THOMAS P JOSEPH, J. ---------------------------------------- O.P (Crl.) No. 36 of 2011 ----------------------------------------- Dated this 1st day of March, 2011 ORDER Petitioner is accused in C.C. No.185 of 2007 of the Court of learned Judicial First Class Magistrate, Kayamkulam for offence punishable under Sec.138 of the Negotiable Instruments Act. Petitioner requested for permanent exemption as per CMP No.15378/2010. Learned Magistrate dismissed that application. Petitioner challenged that order in Crl.M.C No.1980/2010. This Court by Exhibit-P3, order allowed that petition. Accordingly Advocate D Ullas was representing petitioner in the trial court. On 23.10.2010, Advocate Hema represented and reported “no instruction” for petitioner. Thereon, non bailable warrant was issued to the petitioner. According to the petitioner, representation of no instruction was made in collusion with the husband of respondent No.1 who is a senior lawyer of the station. It is contended that before issuing NBW, no notice was issued to the petitioner. Hence, it is prayed that a direction may be issued to the learned Magistrate to recall warrant and grant permanent exemption. Learned counsel for petitioner submits that in C.C No.367/07 of the same court, a similar relief was granted by this Court by order dated 10.01.2011 in O.P (Crl.) No.33 of 2011. I have heard the learned Public Prosecutor also. 2. In the light of the decision in TGN Kumar v. State of Kerala and O.P (Crl.) No.36 of 2011 ...2... Others (2011 (1) KHC 142 (SC)), no direction could be issued to the learned Magistrate. But learned Magistrate has to consider the circumstances pleaded by petitioner for absence of his counsel in Court on 23.10.2010 and taking into account that on all previous dates there was proper representation for petitioner and pass appropriate orders in case an application for bail and cancellation of NBW is preferred. Resultantly, Original Petition is disposed of in the following lines: (i). In case petitioner appeared in the trial court and filed application for bail and to recall the NBW, learned Magistrate shall consider the application and pass appropriate orders as early as possible having regard to the nature of offence involved which does not require a detention and considering the fact that on all days prior to 23.10.2010 petitioner was being represented by counsel (ii) In case an application for permanent exemption is preferred by petitioner, the same shall be considered by the learned Magistrate, having regard to the relevant facts and circumstance and pass appropriate orders in that regard. Original Petition is disposed of with the above directions. Sd/- (THOMAS P JOSEPH, JUDGE) //TRUE COPY// P.A TO JUDGE KRK