IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 Bail Appl..No. 7453 of 2009() ----------------------------- CRIME NO.1468 OF 2008 OF CENTRAL POLICE STATION, ERNAKULAM .................... PETITIONER/ACCUSED -------------------------------------- SOBI GEORGE, COCHIN KALAGRAHAM, KALABHAVAN ROAD, ERNAKULAM NORTH. BY ADV. SRI.S.SUDHEESHKAR RESPONDENT(S): STATE -------------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.7453 of 2009 --------------------------------------------- Dated this the 18th day of January, 2010 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.1468 of 2008 of Central Police Station, Ernakulam. 2. The offence alleged against the petitioner is under Section 420 of the Indian Penal Code. 3. The prosecution case is that promising visa, the petitioner collected a sum of Rs.2,50,000/- from the de facto complainant. Charge sheet was filed in the case on 25.7.2008. Cognizance was taken and the case was numbered as C.C.No.246 of 2008 on the file of the court of the Chief Judicial Magistrate, Ernakulam. It is stated that the court has issued non bailable warrant against the petitioner. The petitioner apprehends arrest in execution of the non bailable warrant. It is submitted that for repayment of the amount taken from the de facto complainant, a cheque was issued by the petitioner. It is stated that the cheque was dishonoured. The de facto BA No.7453/2009 2 complainant filed S.T. Case No.1336 of 2008 before the court of the Judicial Magistrate of the First Class, Kolencherry. In that case Annexure I order was passed by the learned Magistrate on 14.8.2009. The order reads as follows: “Complainant present and filed petition to withdraw the complaint. Allowed. NBW against accused is recalled. Accused is acquitted under Section 257 of the Code of Criminal Procedure.” 4. In Vineeth Somarajan @ Ambady vs. State of Kerala (2009(3) KHC 471), it was held that in cases where non bailable warrant is issued by the court on account of non appearance of the accused, normally, the person against whom the warrant is issued has to approach the court which issued the warrant for re-calling the warrant and for the grant of bail. He cannot, normally, straight away approach the High Court invoking Section 438 of the Code of Criminal Procedure. It was also noticed in that decision that when such an application for bail is filed, the learned Magistrate has to dispose of the Bail Application in the light of the principles laid down in Biju vs. State of Kerala (2007(2) KLT 280). BA No.7453/2009 3 5. In the present case, the case of the petitioner is that the matter was settled between the parties and the amount received from the de facto complainant was repaid. If that is found to be true, the learned Magistrate shall grant bail to the petitioner on the date of surrender before court. The petitioner shall surrender before court within a period of two weeks. The Bail Application is disposed of as above. K.T.SANKARAN, JUDGE csl