IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 Crl.MC.No. 1101 of 2011() ------------------------- LP.37/2004 of JUDL.MAGISTRATE OF FIRST CLASS, KAYAMKULAM .................... PETITIONER(S): ACCUSED: ----------------------------------------- P.REGHUNATHAN PILLAI, PAVOOR PADMALAYAM, EREZHAVADUKKUMMURI, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK. BY ADV. SRI.R.KRISHNA RAJ RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. V.VIJAYAKUMAR, SREEBHAVANAM VEEDU, EREZHATHEKKUM MURI, PERIGAMALA VILLAGE, MAVELIKKARA TALUK, PIN - 685 009. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31. R2 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1101 of 2011 -------------------------------------- Dated this the 5th day of April, 2011. ORDER In view of the order I propose to pass, notice to respondent No.1 is dispensed with. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. Petitioner is accused in L.P.No.37 of 2004 of the court of learned Judicial First Class Magistrate, Kayamkulam for offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Allegedly since petitioner did not respond inspite of service of summons, case was included in the Long Pending Register and a non-bailable warrant was issued to the petitioner. Petitioner filed C.M.P.Nos.165 of 2011, 167 of 2011, 168 of 2011 and 169 of 2011 to recall the warrant, excuse absence of petitioner, refile the case (from .P.No.37 of 2004) and for permission to deposit the cheque amount. Learned Magistrate has dismissed the said applications vide Annexures-A5 to A8, orders dated January 6, 2011. C.M.P.No.165 of 2011 to recall the warrant was dismissed as petitioner continued to be absent. C.M.P.No.167 of 2011 was dismissed as no specific reason is stated in the affidavit which prevented the petitioner from appearing before learned Magistrate in a case included in the Long Pending Register since 2004 onwards. Learned counsel submitted that Crl.MC No.1101/2011 2 since the offence involved is Section 138 of the Act and as no dispute regarding identity of petitioner is involved physical presence of the petitioner is not required. Learned counsel therefore requested that petitioner may be allowed to appear through counsel and contest the case. 3. Since non-bailable warrant is pending against petitioner and since the case is remaining in the Long Pending Register from 2004 onwards appropriate course available to the petitioner is to appear before the learned Magistrate and seek appropriate relief. I am inclined to give petitioner an opportunity to the said purpose. Resultantly this petition is allowed. Annexures-A5 to A8, orders are set aside. C.M.P.Nos.165 of 2011, 167 of 2011, 168 of 2011 and 169 of 2011 are remitted to the learned Magistrate for fresh disposal. Petitioner is granted three weeks time from this day to appear before the learned Magistrate. Warrant of arrest issued to the petitioner will stand in abeyance during the said period or till petitioner appears before the learned Magistrate whichever is earlier. On such appearance learned Magistrate shall consider the applications above referred and the application for bail if presented by petitioner having regard to the nature Crl.MC No.1101/2011 3 of offence and the fact that since identity of the petitioner is not being disputed continued physical presence of the petitioner in the course of trial is not required, and pass appropriate orders as early as possible. THOMAS P.JOSEPH, Judge. cks