IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.MC.No. 4756 of 2008() ------------------------- CC.36/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER/ACCUSED: ------------------------------- ANNIE NJATTUKALAYIL, D/O. PAULOSE KIZHAKKE BHAGATH, MARIKA KARA, PALAKUZHA VILLAGE, MOOVATTUPUZHA MARIKA P.O., PIN 686 662 WORKING AT HALDEN SLT.19, CH-8134-ADTISWIT SWITZERLAND, REP. BY POWER OF ATTORNEY HOLDER BEROY MATHEWS, AGED 41 YEARS, S/O. K.P. MATHAI KIZHAKKEBHAGAM HOUSE, ANAKKOODU, P.O. THODUPUZHA. BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA RESPONDENTS/COMPLAINANT & STATE: ---------------------------------------------------------- 1. THANKACHAN KOLANCHERY, S/O. PAULOSE SARIKAS VILLAGE, CHERUPILLY ROAD KANOOR DESOM, ELAMKULAM VILLAGE KANAYANNUR TALUK. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4756 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of January, 2009 O R D E R The petitioner, a woman, faces indictment in a prosecution under Section 138 of the N.I. Act. She had entered appearance and was enlarged on bail. She is at Switzerland in connection with her employment. She is a permanent resident in that country, it is submitted. The trial in the case has not commenced. Consequent to non-appearance of the petitioner, the learned Magistrate has issued a warrant of arrest on 8.9.2008. The case now stands posted to this day. Coercive processes have been issued against the petitioner and steps have been taken against the sureties. The petitioner has a contention that the cheque is a stolen cheque and the same was not issued for the due discharge of any legally enforceable debt/liability. It is unlikely that the petitioner will be able to return to India prior to June, 2009. She is willing to co-operate with the trial. She shall enter appearance through counsel and co-operate with the court for Crl.M.C.No. 4756 of 2008 2 expeditious disposal of the case. Invoking the dictum in Jain Babu v. Joseph (2008 (4) KLT 16) the petitioner may be exempted from personal appearance and trial may be directed to continue. In June, 2009 if the personal presence be essential and necessary, the petitioner shall be able to appear before Court. It is, in these circumstances, that the petitioner has come to this Court seeking appropriate directions under Section 482 Cr.P.C. 2. The question about the claim for exemption from personal appearance of an accused in a prosecution under Section 138 of the N.I. Act has been considered in detail in the decision referred above. I find absolutely no reason why the petitioner cannot appear through counsel before the learned Magistrate and seek exemption from personal appearance. Personal appearance does not appear to be necessary, from the available indications, to enable the court to proceed with the trial. The counsel expresses an apprehension that the application for exemption may not be considered by the learned Magistrate in the light of the fact that a non-bailable warrant is pending against the petitioner. This question has been considered in detail in the decision in Rohit S. Ved v. State of Kerala (2008 (3) KLT Crl.M.C.No. 4756 of 2008 3 748). It has been held that the mere pendency of a warrant of arrest need not deter a Magistrate from considering the application for exemption. It is, therefore, for the petitioner to appear through counsel before the learned Magistrate and apply for exemption from personal appearance in the light of the decisions referred above. I have no reason to assume that the learned Magistrate would not consider such application on merits and in accordance with law. 3. This Crl.M.C. is accordingly dismissed, but with the specific observation that if the petitioner appears through counsel and makes an application for exemption such application must be considered in the light of the decisions referred above. There shall be an interim direction that the coercive processes issued against the petitioner and her sureties shall not be executed till 7.2.2009, on or before which date the petitioner can appear before the learned Magistrate through counsel and make necessary application as indicated above. (R. BASANT) Judge tm Crl.M.C.No. 4756 of 2008 4