IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 Crl.MC.No. 10 of 2011() ----------------------- C.C.NO.1960 /2008 OF JUDICIAL FIRST CLASS MAGISTRATE-I, THRISSUR PETITIONER(S): ACCUSED ---------------------- AMJAD, AGED 31, S/O.ALI K., KALODY HOUSE, CHERUSHOLA, VIA. RANDATHANI, MALAPPURAM. BY ADV. SRI.THIYYANNOOR RAMAKRISHNAN SRI P.ARUN KUMAR SMT.AMBIKA RADHAKRISHNAN RESPONDENT(S): COMPLAINANT/STATE -------------------------------- 1. SREE GOKULAM CHIT & FINANCE CO. (P) LTD. KOTTAKKAL BRANCH, REP. BY AUTHORISED BABU CHUMMAR, THRISSUR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.10 of 2011 -------------------------------------- Dated this the 04th day of January, 2011. ORDER Notice to respondent No.1 is dispensed with in view of the order I proposed to pass. 2. Petitioner, accused in C.C.No.1960 of 2008 of the court of learned Judicial First Class Magistrate-I, Thrissur seeks a direction to the learned Magistrate to exempt petitioner from personal appearance in court and grant time for payment of the amount as per the compromise (Annexure-C). 3. This proceeding arise from a complaint preferred by respondent No.1 under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Since petitioner was abroad, learned Magistrate granted exemption to the petitioner under Section 205 of the Code of Criminal Procedure (for short, “the Code”). While so, the matter was sent to the adalath for consideration and in the adalath, respondent No.1 and petitioner (who was represented by his counsel) entered into Annexure-C, compromise as per which it was agreed that petitioner would pay the sum of `.2,75,000/- to respondent No.1 within 15 months from 27.11.2010. To record necessary plea, the matter was sent back to the court. Grievance of the petitioner is that learned Magistrate insisted personal appearance of the petitioner to record the plea but, petitioner could not comply since he was abroad. Thereon the case was posted for evidence of respondent Crl.M.C.No.10/2011 2 No.1 who has adduced his evidence. Now the case is posted for examination of petitioner under Section 313 (1) (b) of the Code. It is in the said circumstances, petitioner was constrained to file this petition. 4. I have learned counsel for petitioner and Public Prosecutor who took notice for respondent No.2. Learned counsel placing reliance on the decision in Jain Babu v. Joseph (2008 (4) KLT 16) has argued that since petitioner has been granted exemption under Section 205 of the Code, he could appear in the court below through counsel, his plea could be recorded through counsel and even for the purpose of examination under Section 313(1)(b) of the Code, personal appearance of the petitioner could be dispensed with. The decision relied on by the counsel states that the plea of accused exempted under Section 205 of the Code in a prosecution under Section 138 of the Act can be recorded through counsel. It is also held that even for examination of the accused under Section 313 (1)(b) of the Code, personal appearance of the accused could be dispensed with. In the light of that decision, there was nothing which prevented learned Magistrate from recording plea of the petitioner through his counsel pursuant to Annexure-C, compromise. There is also nothing which prevents learned Magistrate to exempt personal appearance of petitioner even for the examination under Section 313(1)(b) of the Code. In the circumstances, learned Magistrate was not correct in insisting for personal appearance of petitioner. Resultantly this petition is disposed of directing learned Magistrate to proceed in accordance with the directions contained in Jain Babu v. Joseph Crl.M.C.No.10/2011 3 referred to above, be in the matter of recording the plea of petitioner through counsel pursuant to Annexure-C, compromise or, in the matter of examination of petitioner under Section 313(1)(b) of the Code. THOMAS P.JOSEPH, Judge. cks