IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 16TH NOVEMBER 2009 / 25TH KARTHIKA 1931 Crl.MC.No. 3593 of 2009() -------------------------------------- ST.200/1999 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER(S): ACCUSED ---------------------- VENUGOPAL, PROPRIETOR, VENAD ELECTRONICS, MAIN ROAD, OACHIRA 690 526 KOLLAM DISTRICT. BY ADV. MR.S.MOHANAN RESPONDENT(S): STATE ADMN COMPLAINANT ------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. M/S.ALAPATT TRADING CORPORATION REPRESENTED BY ITS MANAGING PARTNER MR.JOSE ALAPAT HAVING ITS OFFICE (HEAD) A BUILDING 39/138 P.B. NO.1110,KARIKKAMURI CROSS ROAD,ERNAKULAM,COCHIN AND BRANCH AT TVM REP POWER OF ATTORNEY HOLDER R.MANOJ,OFFICE MANGAR, ALAPATT TRADING CORPORATION, KOLLAMKOTTIL BUILDINGS, GENERAL HOSPITAL ROAD, TRIVANDRUM. PUBLIC PROSECUTOR MR.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3593 OF 2009 ------------------------------------------ Dated 16th November 2009 O R D E R Petitioner is the accused in S.T.200/1999 now pending as L.P.90/2002 on the file of Additional Chief Judicial Magistrate, Thiruvananthapuram taken cognizance for the offence under Section 138 of Negotiable Instruments Act on a complaint filed by second respondent. A non bailable warrant is pending against the petitioner. According to the petitioner he was unaware of the pendency of the case earlier as he was not served with any summons. Grievance of the petitioner is that after he came to know about non bailable warrant, petitioner filed C.M.P.4800/2009 to re-call the non bailable warrant and also filed a petition for exemption under Section 205 of Code of Criminal Procedure. But the latter application was not received by the learned Magistrate and C.M.P.4800/2009 was dismissed by Annexure-3 order, for the reason that accused did not appear. This petition is filed under Section 482 of Code of Criminal Crmc 3593/09 2 Procedure to quash Annexure-3 order and to direct learned Magistrate to receive the petition filed under Section 205 of Code of Criminal Procedure. 2. Learned counsel appearing for the petitioner was heard. 3. Relying on the decision of this court in Rahit S.Ved v. State of Kearla (2008 (4) KLT 671) learned counsel submitted that dismissal of the application for re-calling warrant on the ground that petitioner did not appear is illegal in view of decision of this court in that case. Relying on the decision in Jain Babu v. Joseph (2008 (4) KLT 16) it is argued that failure to receive the petition filed under Section 205 of Code of Criminal Procedure, on the ground that a non bailable warrant is pending is in violation of the mandate given by this court in Jain Babu's case. 4. This court in Rohit's case (supra) considered the question whether an accused who is alleged to have committed an offence under Section 138 of Negotiable Instruments Act and against whom warrant is pending can apply through the counsel for exemption under Section 205 of Code of Criminal Crmc 3593/09 3 Procedure and plead guilty or not guilty. This court held that fact that a warrant has been issued later, after issuing summons under Section 204 of Code of Criminal Procedure, is not a reason to refuse exemption under Section 205 and court shall not insist for personal presence of the accused to consider the application for exemption to plead guilty or not guilty. In Jain Babu's case (supra) this court considered the question whether accusation that person committed an offence under Section 138 of Negotiable Instruments Act is a sufficient circumstance to grant exemption under Section 205 of Code of Criminal Procedure. It is found that fact that it is a technical offence and involves no moral turpitude are sufficient to mandate that in a prosecution under Section 138, discretion under Section 205 of Code of Criminal Procedure must be exercised in favour of the accused. Question whether personal presence of the petitioner, even if a non bailable warrant is pending, is to be insisted was also considered and held that even when warrant of arrest had been issued earlier, power under Section 205 can be invoked by the court. In such circumstances, Annexure-3 order passed Crmc 3593/09 4 by the learned Magistrate is illegal and is quashed. Learned Magistrate is directed to re-call non bailable warrant issued as sought for in C.M.P.4800/2009 and consider the application filed by the petitioner under Section 205 of Code of Criminal Procedure for exemption. Petitioner to present the application under Section 205 of Code of Criminal Procedure, before the Magistrate and Magistrate shall receive the same and pass orders in accordance with law as directed by this court in Jain Babu's case (supra). M.SASIDHARAN NAMBIAR, JUDGE. uj.