IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.MC.No. 1943 of 2011() ---------------------- CMP 262(a)/10 IN S.T. NO. 1087/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VIII, THIRUVANANTHAPURAM ...................... PETITIONER / ACCUSED : ------------------------------------- B.SAJEEVAN, PROPRIETOR, INTUSR ASSOCIATES, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADVS. SRI.BINOY VASUDEVAN SMT. P.G. BABITHA RESPONDENTS / STATE / COMPLAINANT : ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.SATHYADEVAN, SREEVILASAM, MUKKOLACKAL, THIRUVANANTHAPURAM. R1 BY PUBLIC PROSECUTOR SRI. B. JAYASURYA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn ...2/- Crl.MC.No. 1943 of 2011() APPENDIX PETITIONER'S ANNEXURE'S ANNEXURE - A : COPY OF THE COMPLAINT, S.T. NO. 1087/2006 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II, THIRUVANANTHAPURAM. ANNEXURE - B : COPY OF THE AFFIDAVIT PREFERRED BY THE SECOND RESPONDENT COMPLAINANT. ANNEXURE - C : COPY OF THE APPLICATION, C.M.P. NO. 262(a)/10 IN S.T. NO. 1087/2006 FILED BY THE ACCUSED SEEKING ADJOURNMENT OF THE CASE. ANNEXURE - D : COPY OF THE ORDER DATED 01.11.2010 IN C.M.P NO. 262(a)/10 IN S.T. NO. 1087/2006. RESPONDENT'S ANNEXURE'S - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.1943 of 2011 --------------------------------------- Dated this 30th day of June, 2011 ORDER Petitioner is accused in S.T.No.1087 of 2006 of the Court of learned Judicial First Class Magistrate-VIII, Thiruvananthapuram for offence punishable under Sec.138 of the Negotiable Instruments Act. That complaint was preferred by the second respondent. After close of prosecution evidence, case was posted for examination of petitioner under Sec.313(1)(b) of the Code of Criminal Procedure (for short, "the Code”). At that stage, counsel for petitioner filed Annexure-C, application seeking exemption of petitioner and permit examination to be conducted through counsel. That application was dismissed, bail bond was cancelled, non bailable warrant was issued to the petitioner and notice was ordered to the sureties as per Annexure-D, order. The said order is under challenge. Learned counsel has submitted that learned Magistrate has not applied mind to the application and the permissibility of the petitioner being examined through counsel under Sec.313(1)(b) of the Code. Learned counsel submitted that petitioner is now abroad and it will cause much difficulties for him to appear before Court for examination under Sec.313(1)(b) Crl.M.C.No.1943 of 2011 -: 2 :- of the Code. I have heard learned Public Prosecutor also. 2. I have gone through Annexure-D, order which does not show proper application of mind. Learned Magistrate has to consider the application having regard to the circumstances stated therein including difficulty of petitioner to appear in Court on account of his being abroad. Learned Magistrate has also consider decision of the Supreme Court in Baswaraj R. Patil Vs. State of Karnataka ((2000)8 SCC 740) where guidelines for examination of the accused under Sec.313(1)(b) of the Code through counsel are given. Resultantly this criminal miscellaneous case is allowed. The impugned order is set aside and C.M.P.No.262(a) of 2010 in S.T.No.1087 of 2006 of the Court of learned Judicial First Class Magistrate-VIII, Thiruvananthapuram is remitted to the learned Magistrate for fresh disposal in the light of the observations made and decision referred supra. (THOMAS P JOSEPH, JUDGE) Sbna/-