IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 Crl.MC.No. 589 of 2011() ------------------------ CC.166/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, THRISSUR .................... PETITIONER: --------------- SAJI K.R., W/O. SUNIL, KARIMTHAKARAKUZHIYIL, KANDUKADU, KARUVNKADU, THRISSUR. BY ADV. SRI.M.J.THOMAS RESPONDENT: ------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. K J MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.589 of 2011 --------------------------------------- Dated this 24th day of February, 2011 ORDER Petitioner is accused in C.C.No.166 of 2009 of the court of learned Judicial First Class Magistrate-I, Thrissur for offence punishable under Sec.138 of the Negotiable Instruments Act (for short, "the Act”). Learned Magistrate has issued proclamation under Sec.82 of the Code of Criminal Procedure (for short, "the Code”) against petitioner and it has been served on him. Petitioner is asked to appear before the learned Magistrate on 26.02.2011. It is stated that petitioner's child is admitted in the hospital with serious illness and hence petitioner is unable to appear before Court. It is therefore prayed that a direction may be issued to the learned Magistrate to exempt petitioner from personal appearance under Sec.205 of the Code. Learned counsel made a fervent plea that the request may be allowed. I have heard learned Public Prosecutor. 2. In the light of the decision of the Supreme Court in T.G.N.Kumar Vs. State of Kerala (2011(1) KHC 142) this Court cannot interfere with discretionary power of the learned Magistrate and hence no such direction as prayed for could be Crl.M.C.No.589 of 2011 -: 2 :- issued. But, I make it clear that it is open to the petitioner to appear before the learned Magistrate on the date on which he is summoned to appear and move appropriate application. If any such application is preferred learned Magistrate shall consider the difficult situation in which petitioner is placed, his inability to appear in Court and that the offence alleged is under Sec.138 of the Act where normally, issue regarding identity of the accused may not arise and pass appropriate orders having regard to all relevant circumstance. This criminal miscellaneous case is disposed of with the above direction. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge