IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 Crl.MC.No. 3208 of 2008() ------------------------- AGAINST THE ORDER DATED 24/07/2008 IN CMP. 3185 /2008 IN CC.103/2006 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... PETITIONER: ACCUSED: -------------------- GOVINDAN KUTTY, AGED 42 YEARS S/O.LATE P.GOVINDAN, R/AT PUTHIYALDAVAN HOUSE, THIMIRI, CHERUVATHUR, KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN SRI.K.P.HARISH RESPONDENTS: COMPLAINANT: ------------------------- 1. THE LORD KRISHNA BANK LTD., REPRESENTED BY ITS BRANCH MANAGER, K.C.SHAFEEQUE. 2. STATE- REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI.GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 3208 of 2008 ------------------------------------------------- Dated this the 25th day of August, 2008 ORDER The petitioner is the 3rd accused in a prosecution for the offence punishable under Sec.420 IPC. Cognizance has been taken on the basis of a private complaint filed before the learned Chief Judicial Magistrate, Kasaragod. The petitioner is the 3rd accused. Altogether, there are 7 accused persons. The petitioner was the Manager of the complainant/bank at the relevant time and the crux of the allegations is that he had colluded with others to fraudulently deceive the bank. A private complaint has been filed. Cognizance has been taken by the learned Magistrate. The petitioner has entered appearance already and has been enlarged on bail. Some of the co-accused have filed Crl.M.C.No.937/06 and there was an order of stay passed in favour of such petitioners granting Crl.M.C. No. 3208 of 2008 -: 2 :- interim stay against continuation of all further proceedings in the case i.e., C.C.No.103/06. The petitioner has not approached this Court. The case as such is stayed and the proceedings cannot continue against the petitioner or others similarly placed. The petitioner finds the prospect of lucrative employment abroad. The petitioner wants to get himself exempted from personal appearance so that he can proceed to such place of employment abroad in Nigeria to take up employment. The petitioner apprehends that when he is not available in India, the learned Magistrate may insist on his personal appearance and he is hence reluctant to leave India to take up such employment. The petitioner, who is a law abiding citizen, wanted to take the permission of the court before leaving for his place of employment abroad. He therefore filed an application for exemption from personal appearance under Sec.205 Cr.P.C. That petition was dismissed by the impugned order. The petitioner claims to be aggrieved by the impugned order. 2. The learned counsel for the petitioner submits that the petitioner is being obliged to remain in India unnecessarily. The allegations against him are without any substance. At any rate, the petitioner did not want to challenge the cognizance as he felt that the Calendar Case can itself be got disposed of Crl.M.C. No. 3208 of 2008 -: 3 :- expeditiously. But expeditious disposal was not achieved. The petitioner was hence obliged to seek exemption from personal appearance. 3. The learned counsel for the petitioner submits that the petitioner's opportunities in life will be foiled by unnecessary insistence on personal appearance. The petitioner shall appear before the learned Magistrate as and when directed by the learned Magistrate within a period of two months from the date on which such direction is issued. The petitioner shall scrupulously ensure that he is personally present before court on any date on which his personal appearance is necessary. There is no question of identification in this case and the petitioner shall make appropriate application under Sec.205 or Sec.317 Cr.P.C. for exemption from personal appearance. The learned Magistrate by the impugned order rejected the said request. Such rejection works out great prejudice, hardship, inconvenience and loss to the petitioner. The impugned order may be set aside subject to any appropriate terms. The petitioner may be exempted from personal appearance, prays the learned counsel for the petitioner. 4. I find merit in the prayer of the learned counsel for the petitioner. I am satisfied that the petitioner can be granted Crl.M.C. No. 3208 of 2008 -: 4 :- exemption from personal appearance and he can be permitted to leave for his place of employment abroad if that be necessary. But the petitioner must undertake and ensure that he shall appear before the learned Magistrate within a period of 2 months from the date on which an order is passed by the learned Magistrate directing the petitioner to appear in person before court. Such order need only be written in the order sheet. The petitioner's counsel shall convey the same to the petitioner from time to time, submits the learned counsel for the petitioner. 5. The learned Magistrate did not grant the prayer for exemption and I am afraid, the reasons shown are not sufficient or adequate. The impugned order can, in these circumstances, be set aside and appropriate directions under Sec.205 Cr.P.C. can be issued. 6. In the result: (a) This Crl.M.C. is allowed. (b) The prayer for exemption from personal appearance made in C.M.P.No.3185/08 is allowed. (c) The petitioner shall be permitted to appear through his counsel and claim exemption from personal appearance. His personal appearance shall not be insisted by the learned Magistrate unless such presence is indispensable provided he is Crl.M.C. No. 3208 of 2008 -: 5 :- represented by counsel before the court below. The petitioner shall file an undertaking before the learned Magistrate agreeing to appear before the learned Magistrate personally within a period of 2 months from the date on which an order to that effect is passed by the learned Magistrate by recording such order in the order sheet. The petitioner shall ascertain such orders from time to time through his counsel and comply with the same. 7. Hand over a copy of this order to the learned counsel for the petitioner. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 3208 of 2008 -: 6 :-