IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.MC.No. 3767 of 2008() ------------------------- CC.100/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... PETITIONER(S): --------------- 1. T.K. VIJAYARAJAN @ VIJAYARAJARSHI, AROGYANIGATHAN, P.B. NO.25, PATHANAMTHITTA DISTRICT. (RESIDING AT KURIKATTIL, KIZHAKKETHIL, IRAVAN VILLAGE, PATHANAMTHITTA.) 2. VIMALRAJ SOORYAVARMA, KURIKATTIL KIZHAKKETHIL HOUSE, IRAVAN VILLAGE, PATHANAMTHITTA. BY ADV. SRI.M.T.SURESHKUMAR SRI.V.V.RAJA RESPONDENT(S): --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI. S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 3767 of 2008 ------------------------------------------------- Dated this the 13th day of October, 2008 ORDER The petitioners, along with three others, face indictment in a prosecution for offences punishable, inter alia, under Sec.420 read with Sec.34 IPC. The crux of the allegations against them is that they, in furtherance of their common intention, had defrauded the victims and had induced them to part with an amount of Rs.1,56,000/. 2. According to the petitioners, they are absolutely innocent. They are arrayed as accused 3 and 4. Final report has already been filed. Cognizance has been taken. One of the petitioners had earlier come before this Court with Crl.M.C. No.1896/08 to quash the proceedings and the said Crl.M.C. was dismissed with the observation that the petitioner can move the learned Magistrate for discharge/acquittal. Crl.M.C. No. 3767 of 2008 -: 2 :- 3. The petitioners have not been able to appear before the learned Magistrate so far though the said order was passed as early as on 22/5/08. The petitioners are the father and son duo. It is submitted that the father is seriously ill and the son's presence is necessary by his side to attend on him. They are now at Kanyakumari, it is submitted. 4. The learned counsel for the petitioners submits that the petitioners shall show their bona fides by remitting a total of 25% of the amount involved – Rs.39,000/- each. They may be permitted to appear through counsel and advance their plea for discharge. They may be exempted from personal appearance subject to condition that each of them deposits an amount of Rs.39,000/-. If and only if the court finds that charges are liable to be framed against them need their personal presence be insisted. Till then, they may be permitted to appear through counsel, prays the learned counsel for the petitioners. 5. I have considered the submissions made. I have perused the copy of the final report that is placed before me. In the peculiar facts and circumstances of this case, I am satisfied that the prayer of the petitioner is bona fide and relief can be granted to them subject to appropriate safeguards. 6. In the result, this Crl.M.C. is allowed. Following Crl.M.C. No. 3767 of 2008 -: 3 :- directions are issued: (i) If the petitioners deposit an amount of Rs.39,000/- each within a period of 15 days from this date before the learned Magistrate and pray for exemption from personal appearance, that request shall be accepted by the learned Magistrate and the petitioners shall be permitted to advance their plea for discharge through their counsel. Their personal presence shall not be insisted until a decision is taken under Sec.239/240 Cr.P.C. Only if charges are found to be liable to be framed against them, need their personal presence be insisted by the learned Magistrate thereafter. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 3767 of 2008 -: 4 :-