IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 Crl.MC.No. 268 of 2011() ---------------------------------- PETITIONER(S): ----------------------- MANJU SUSAN IDUCULA, D/O.KURUVILA, NELLIMOOTTIL HOUSE, MANJADI PO NEAR PUSHPAGIRI HOSPITAL, THIRUVALLA. BY ADV. SRI.R.GIREESH VARMA RESPONDENT(S): --------------------------- 1. HILARY FELSON S/O. FRANCIS, BINDHU BHAVAN, NEAR ST.SEBASTIAN'S CHURCH, VETTUKAD, THIRUVANANTHAPURAM.695 001 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682 031 R2 BY PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.268 of 2011 --------------------------------------- Dated this 28th day of January, 2011 ORDER Petitioner is the accused in S.T.No.826 of 2008 of the court of learned Chief Judicial Magistrate, Thiruvananthapuram facing charge for offence punishable under Sec.138 of the Negotiable Instruments Act. Non bailable warrant was issued to the petitioner. According to the petitioner, she has been staying with family in Kuwait and never received any summons from the court. She filed application for exemption from appearance under Sec.205 of the Code of Criminal Procedure and to recall the warrant. Learned Magistrate has dismissed application to recall the warrant but the application for exemption has not so far been disposed of. Hence this petition seeking a direction to the learned Chief Judicial Magistrate to consider the said application under Sec.205 of the Code and exempt petitioner from personal appearance. Learned counsel has placed reliance on the decision in Bhaskar Industries Ltd Vs. Bhiwani Denim And Apparents Ltd. And Ors. (2001(7) SCC 401). 2. Even as per the submission made by learned counsel the application under Sec.205 of the Code is pending consideration before the learned Chief Judicial Magistrate. While Crl.M.C.No.268 of 2011 -: 2 :- overruling the decision of this court in M/s. Jain Babu Vs. K.J.Joseph (2008(4) KHC 1) the Supreme Court in T.G.N.Kumar Vs. State of Kerala (2011(1) KHC 142) has referred to the decision in Bhaskar Industries Ltd Vs. Bhiwani Denim And Apparents Ltd. And Ors (supra) and Baswaraj R. Patil Vs. State of Karnataka (2000(8) SCC 740). It is held that the question has to be decided by the court concerned. Necessarily therefore, learned Chief Judicial Magistrate has to consider the application under Sec.205 of the Code in the light of the said decision reiterated in T.G.N.Kumar Vs. State of Kerala (supra). In the light of the said decision no direction can be issued to the learned Chief Judicial Magistrate as to what manner the application is to be disposed of. I leave that matter to the discretion of the learned Chief Judicial Magistrate to be exercised judicially having regard to the facts and circumstances of the case. Resultantly this petition is disposed of directing the learned Chief Judicial Magistrate, Thiruvananthapuram to dispose of the application preferred by petitioner under Sec.205 of the Code as stated above within a period of one month from this day. Non bailable warrant issued to the petitioner will stand in abeyance Crl.M.C.No.268 of 2011 -: 3 :- during the said period of one month or till the learned Chief Judicial Magistrate passed orders on the application under Sec.205 of the Code whichever is earlier. (THOMAS P JOSEPH, JUDGE) Sbna/-