IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 Crl.MC.No. 749 of 2010() ------------------------ ST.40/2005 of JUDL.MAGISTRATE OF FIRST CLASS, KOLENCHERRY .................... PETITIONER/ACCUSED: ------------------------------------ M.S.RAJU, PROPRIETOR, M/S.MSR INTERNATIONAL PLACEMENT CONSULTANT, NO.509,5TH FLOOR, ARCHANA ARCHADE, BEHIND HOTEL RAMAKRISHNA, ST.JOHN ROAD, SECUNDERABAD-500 025, RESIDING AT DOOR NO.5, BHAVANI TOWERS, BHAVANI NAGAR, NACHARAM, HYDERABAD. BY ADV. MR.SAKIR.K.H. RESPONDENT(S): COMPLAINANT AND STATE: ---------------------------------------------------------------------- 1. C.P.MAHESH, S/O. PADMANABHAN NAIR, PADMAVILAS HOUSE, ANCHELPETTY.P.O. PAMPAKUDA, KOTTAYAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/03/2010 ALONG WITH CRMC.NO.750 OF 2010, CRMC.NO. 751 OF 2010 AND CRMC.NO.752 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. --------------------------------------------------------------------- CRL.M.C.NOs.749, 750, 751 & 752 OF 2010 --------------------------------------------------------------------- Dated 4th March 2010 O R D E R Petitioner, the accused in S.T.40/2005, 1013/2005, 41/2005 and 39/2005 on the file of Judicial First Class Magistrate, Kolencherry filed Annexure-A1 petitions in all these cases, through his counsel, under Section 205 of Code of Criminal Procedure to dispense with his personal appearance at the time of trial. By Annexure-A2 orders, petitions were dismissed. Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A2 orders. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel Crmc 749, 750, 751 & 752/10 2 relying on the decisions of this court in Jain Babu v. Joseph (2008 (4) KLT 16 and Rohid.S.Ved v. State of Kerala (2009 (4) KLT 671) is that as declared by this court even when non bailable warrant is pending, an accused is entitled to appear through a counsel and file application under Section 205 of Code of Criminal Procedure and in such circumstances, dismissal of the petition by Annexure-2 order are to be quashed. 4. True, in a case being tried for offence under Section 138 of Negotiable Instruments Act, fact that non bailable warrant is pending by itself is not a ground to dismiss the petition filed under Section Crmc 749, 750, 751 & 752/10 3 205 of Code of Criminal Procedure. But on the facts and circumstances of the case, I find no reason to interfere with Annexure-A2 orders. When presence of the accused is sought to be dispensed with by filing a petition under Section 205 of Code of Criminal Procedure during whole trial, it is for the accused to file an undertaking that he will not dispute his identity and evidence could be recorded in his absence treating the presence of the counsel as his presence and he will not challenge the evidence so recorded before that court, or the appellate court or the revisional court. Counsel is not entitled to file an application stating those facts as it may not be binding on the party. As Annexure- Crmc 749, 750, 751 & 752/10 4 A1 petitions were filed by the counsel alone and the petitions do not contain the necessary averments, they can only be dismissed. Hence I find no reason to interfere with Annexure-A2 orders. Petitions are dismissed with liberty to file proper applications in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.