IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 Crl.MC.No. 99 of 2011() ----------------------- CC.707/2008 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... PETITIONER(S):COMPLAINANT: --------------------------------------------------- M/S. S.L.K. FOOD PROCESSING, M.A.ROAD, CALICUT, REPRESENTED BY M.KHALID, MANAGING PARTNER. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S):ACCUSED: ------------------------------------------- 1. MANOJ R., S/O. K.N.RAVINDRAN NAIR, KUZHIKATTU HOUSE, IRINGOLE P.O., PERUMBAVOOR, PROPRIETOR, SIVA MARKETING, IRINGOLE P.O., PERUMBAVOOR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.99 of 2011 ==================================== Dated this the 13th day of January, 2011 O R D E R Orders dated 16.11.2010 and 30.11.2010 in C.C.No.707 of 2008 of the court of learned Judicial First Class Magistrate-I, Kozhikode are under challenge in this petition. Petitioner filed the complaint against respondent for an offence punishable under Section 138 of the Act. According to the petitioner, summons was served on respondent No.1 and counsel appeared for him and filed memo. Thereafter there was no response from the respondent and coercive steps were taken. It is seen from Annexure-C that Non Bailable Warrant was ordered to respondent No.2 on 16.07.2009 and from then onwards it was being repeated but could not be executed. In the meantime learned Magistrate directed petitioner to furnish correct address of respondent No.2. It would appear that on many of the posting days petitioner was absent and he was represented by counsel. On 06.08.2010 there was a direction to the petitioner to furnish correct address of respondent. That was not complied with either on 01.10.2010 or on 16.11.201. On 16.11.2010 learned Magistrate extended the CRL.M.C. No.99 of 2011 -: 2 :- time for furnishing correct address of respondent No.2 on deposit of costs of Rs.1,000/- On 30.11.2010 learned Magistrate issued distress warrant as costs was not deposited. The aforesaid orders are under challenge in this proceeding. Learned counsel submits that there is no provision to award costs in the way learned Magistrate has ordered and placed reliance on the decision in Mary Angel v. State of Tamil Nadu ([1999] 5 SCC 209). 2. Though various contentions are raised before me by learned counsel for petitioner after arguing the matter for some time learned counsel submitted that petitioner may be permitted to withdraw this petition with liberty to deposit costs awarded in the court below and in the meantime distress warrant may be stayed. Learned counsel has requested that in future proceedings if costs is intended to be ordered by the learned Magistrate petitioner may be permitted to urge the legal issues involved before the learned Magistrate. Considering the facts and circumstances of the case I am inclined to grant that relief. Resultantly, Criminal Miscellaneous Case is dismissed as withdrawn permitting petitioner to deposit the costs in the trial CRL.M.C. No.99 of 2011 -: 3 :- court within one month from this day. The Distress warrant issued to the District Collector for realization of the amount will stand in abeyance during the said period. It is made clear that in future proceedings if costs is to be ordered against petitioner it will be open to the petitioner to raise his objection to such proceeding as provided under law. THOMAS P. JOSEPH, JUDGE. vsv