IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.MC.No. 1984 of 2011() ------------------------ AGAINST THE ORDER DATED 21/12/2010 IN CRMP.2543/2010 IN CC.123/2010 of CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD ................... PETITIONER(S): ACCUSED --------------------------------------- MANIKANDAN, S/O.SOMASUNDARAM, AGED 38 YEARS, VISWANATHA BHAVAN, KUNNATHUMEDU, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): STATE & COMPLAINANT ------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (REPRESENTING THE SUB INSPECTOR OF POLICE, TOWN SOUTH POLICE STATION, IN CRIME NO.181/2002). BY PUBLIC PROSECUTOR SRI. V. MANU. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 1984 of 2011 APPENDIX: PETITIONER'S ANNEXURES: ANNEXURE A1: TRUE COPY OF THE FIR IN CRIME No.181/2002. ANNEXURE A2: TRUE COPY OF THE JUDGEMENT DATED 15.10.2008 IN C.C.No.58/08 ANNEXURE A3: TRUE COPY OF THE ORDER DATED 19.7.2010 IN Crl.M.C.2735/2010. ANNEXURE A4: TRUE COPY OF THE C.M.P.No.2540/2010 FILED BY THE PETITIONER IN THE COURT OF THE CHIEF JUDICIAL . MAGISTRATE, PALAKKAD. ANNEXURE A5: TRUE COPY OF THE ORDER DATED 21.12.2010 IN Crl.M.P.No, 2543.2010 IN C.C.No.123/2010 OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, PALAKKAD. RESPONDENT'S EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1984 of 2011 ==================================== Dated this the 30th day of June, 2011 O R D E R Petitioner is the second accused in Crime No.181 of 2002 of Palakkad Town South Police Station and C.C. No.123 of 2010 of the court of learned Chief Judicial Magistrate, Palakkad for offence punishable under Section 406 read with Section 34 of the Indian Penal Code. Case is that the first accused availed a loan of Rs.2,40,000/- from the Kerala Financial Corporation (for short, “the KFC”) with petitioner and third accused as co-obligants creating equitable mortgage on their respective properties. First accused also hypothecated his machineries to the KFC. But later, first accused removed the same to another place and thereby committed the offence. Petitioner filed Crl. M.P. No.2543 of 2010 before learned Chief Judicial Magistrate to discharge him. But that application was dismissed as per Annexure-A5, order which is under challenge. I have heard learned Public Prosecutor also. 2. It is seen that petitioner had approached this Court with Crl. M.C. No.2735 of 2010 to quash the proceeding in Crime No.181 of 2002 and this Court by Annexure-A3, order dated CRL.M.C. No.1984 of 2011 -: 2 :- 19.07.2010 refused to do so in view of the decision in Moosa v. Sub Inspector of Police (2006 [1] KLT 552) and directed petitioner “to face trial”. Trial of the case commence on framing of charge. In the light of the direction in Annexure-A3, order learned Chief Judicial Magistrate cannot be faulted with for not discharging petitioner under Section 239 of the Code of Criminal Procedure. So far as Annexure-A3, order stands, request of petitioner for discharge cannot be granted. 3. Learned counsel submitted that petitioner is working beyond the State and it is difficult for him to appear in court every now and then. It is also submitted that since there is no dispute regarding identity of the offender physical presence of petitioner at the time of trial is not required. Learned counsel has pointed out that this Court while disposing of Crl. M.C. No.2735 of 2010 observed that in case petitioner files application through his counsel for exemption from personal appearance during trial learned Magistrate shall consider the same favourably notwithstanding pendency of warrant against petitioner. It is on the basis of the said observation that petitioner filed a petition (Crl. M.P. No.2540 of 2010) before the learned Chief Judicial Magistrate on 29.09.2010 seeking permanent exemption but no CRL.M.C. No.1984 of 2011 -: 3 :- order is passed on the said petition so far and a non-bailable warrant is pending against petitioner. If Crl. M.P. No.2540 of 2010 filed on 29.09.2010 has not so far been disposed of, learned Chief Judicial Magistrate shall dispose of the same in view of the observation made by this Court in Annexure-A3, order in Crl. M.C. No.2735 of 2010 and taking into account that there is no possibility of any dispute regarding identity of petitioner, he is working beyond the State and asking him to appear in the trial court every now and then may cause much inconvenience to him. Resultantly, Criminal Miscellaneous Case is disposed of directing learned Chief Judicial Magistrate, Palakkad to dispose of the petition (Crl. M.P. No.2540 of 2010) filed by petitioner as early as possible having regard to the observations made above and the direction issued by this Court in Annexure-A3, order in Crl. M.C. No.2735 of 2011 as well. Non-bailable warrant issued to the petitioner will stand in abeyance until the said application is disposed of. THOMAS P. JOSEPH, JUDGE. vsv