IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 Crl.MC.No. 1152 of 2011() ------------------------------------- ST.2148/2010 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... PETITIONER(S): ACCUSED NO.3 ----------------------------------------------- P.SUBRAMANIAN EXECUTIVE DIRECTOR, M/S INFLEX MARKETING SERVICES INDIA PVT LTD OS 54 GCDA COMPLEX, MARINE DRIVE COCHIN 682 031. BY ADV. SRI.S.NIRMAL KUMAR RESPONDENT(S): COMPLAINANT ------------------------------ -------------------- 1. STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. M/S REGAL COMMODITIES PVT LTD CC VI/1037, SHAN COMPLEX, BAZAR ROAD, COCHIN 682 002, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE AND MANAGER, K.SIVARAM. R1 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1152 of 2011 -------------------------------------- Dated this the 6th day of April, 2011. ORDER In view of the order I propose to pass notice to respondent No.2 is dispensed with. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. Petitioner being a director of a company is facing trial for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”) in S.T.No.2148 of 2010 of the court of learned Judicial First Class Magistrate, Kolenchery. Petitioner filed C.M.P.No.509/A/2011 through counsel seeking permanent exemption from appearance on account of old age (aged about 75 years), illness and inability to move. Learned Magistrate by Annexure- A2, order (dated Nil) dismissed the petition observing that there is no affidavit of petitioner and directing him to appear before court and file proper petition. Learned counsel, placing reliance on the decision in Reddy v. Excel Glasses Ltd. (2010 (3) KLT SN 11 (Case No.14)) has contended that learned Magistrate could allow an accused to make even first appearance through counsel and even before execution of bail bond for sufficient reasons, accused is entitled to apply for exemption from personal appearance. In holding so, learned Judge has placed reliance on the decision of the Supreme Court in Manoj Narian Agarwal and others v. Shashi Agarwal and others ((2009) 6 SCC 385). Crl.MC No.1152/2011 2 3. It is stated that on account of old age and acute coronary artery disease , diabetis, hyper tension, etc. petitioner is not able to move about. In such a situation learned Magistrate should have considered the petition filed by petitioner rather than insisting on personal appearance which petitioner is difficult for him due to illness and old age. It is also stated that petitioner is prepared to file affidavit explaining his difficulty to appear before learned Magistrate, undertaking that trial could be conducted in the presence of his counsel in his absence and that he has no objection in recording the evidence in his absence. Resultantly this Criminal Miscellaneous Case is allowed. Annexure-A2, order (dated Nil) on C.M.P.No.509/A/2011 in S.T.No.2148 of 2010 of the court of learned Judicial First Class Magistrate, Kolenchery is set aside. C.M.P.No.509/A/2011 is remitted to the learned Magistrate for fresh decision. Petitioner may file an affidavit as above stated explaining his inability to appear before the learned Magistrate. Learned Magistrate need not insist on physical presence of petitioner for consideration of the petition and shall pass appropriate orders having regard to the facts and circumstances of the case and in the light of the decisions referred to supra. Until such order is passed, coercive steps if any issued against petitioner will stand in abeyance. THOMAS P.JOSEPH, Judge. cks