IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 Crl.MC.No. 29 of 2005(C) ------------------------ CC.180/2004 of JUDL. MAGISTRATE OF FIRST CLASS-II(MOBILE), KOTTAYAM .................... PETITIONER(S): ACCUSED NO.2: -------------------------------------------------- T.MOHAMMED ASHRAF, 4B, LINK HEIGHTS, PANAMBILLY NAGAR, KOCHI-36. BY ADVS. MR.P.B.SAHASRANAMAN, MR.K.JAGADEESH, MR.T.S.HARIKUMAR. RESPONDENT(S): STATE AND COMPLAINANT: ---------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS DIRECTOR OF PUBLIC PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. JOSEPH CHAVARA, PROPRIETOR, CHAVARA AN ADVERTISING MEDIA, BAKER HILL SHOPPING COMPLEX, KOTTAYAM. R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI R2 BY ADV. MR.M.J.THOMAS THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.29 of 2005 -------------------------- ORDER Petitioner is the second accused in C.C.No. 180/2004 on the file of Judicial First Class Magistrate's Court-II, Kottayam. He is shown as the Managing Director representing the first accused company. Petitioner filed C.M.P.No. 1432/2004 before the Magistrate under Section 205 read with Section 317 of Code of Criminal Procedure to exempt him from appearing on behalf of the first accused company and to dispense with his personal attendance. It was dismissed under Annexure-A4 order. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A4 order contending that in C.P.No.6/2003, as evidenced by Annexure-A3 order dated 18.6.2004, this Court, after getting satisfied that in the interest of the company and its creditors, it is necessary to appoint a Provisional Liquidator to CRMC 29/05 2 preserve the assets of the company, appointed a Provisional Liquidator and therefore, from the said day onwards, petitioner cannot represent the company as the Managing Director and therefore, the learned Magistrate should have allowed the petition. 2. Learned counsel appearing for the petitioner and second respondent were heard. 3. There is force in the submission of the learned counsel appearing for the petitioner that consequent to Annexure-A3 order passed by this Court in the company petition appointing the Official Liquidator as the Provisional Liquidator, petitioner cannot represent the company as the Managing Director. Learned Magistrate, therefore, should have clarified that position. But, being one of the accused, petitioner is still to appear before the Magistrate as the second accused. I find no reason why personal presence of the petitioner is to be insisted on all the posting dates of the CRMC 29/05 3 case. Petitioner is at liberty to apply before the Magistrate to dispense with his presence, showing reasons. If petitioner files an application as provided under Section 205 of Code of Criminal Procedure, to dispense with his presence at the time of recording the evidence, undertaking that presence of his counsel be treated as his presence and evidence could be recorded and he will not challenge the evidence so recorded in that court or in appeal or in revision. I find no reason why the Magistrate shall not grant the permission. In such circumstances, petition is disposed making it clear that petitioner need not appear for the first accused company as a Provisional Liquidator is appointed by this Court and granting liberty to the petitioner to file a petition under Section 205 of Code of Criminal Procedure, for exemption from personal appearance. 6th August, 2009 (M.Sasidharan Nambiar, Judge) tkv