IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 Crl.MC.No. 3191 of 2009 --------------------------------------- ST.1944/2007 of JUDICIAL MAGISTRATE OF FIRST CLASS – II, ETTUMANUR .................... PETITIONER/ACCUSED: V. RAMANI, AGED 52 YEARS, W/O. MUHAMMEDALI, RESIDING AT LOVEDALE, ELOOR NORTH, ERNAKULAM DIST. BY ADV. SRI.C.ANILKUMAR (KALLESSERIL) RESPONDENTS/COMPLAINANT & STATE: 1. M. RAVINDRANATHAN NAIR, RAVINDRAM, PUNNAPRA P.O., ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSEUCTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSEUCTOR SRI.AMJAD ALI FOR R2 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3191 of 2009 -------------------------- ORDER Petitioner is the accused in S.T.No.1944/2007 on the file of Judicial First Class Magistrate's Court-II, Ettumanoor, taken cognizance for the offence under Section 138 of Negotiable Instruments Act. On 11.8.2009, when the case was posted, petitioner was absent and there was no representation. Hence, Non bailable warrant was issued, which was being repeated even on 26.9.2009. The case was then posted to 6.10.2009. This petition is filed under Section 482 of Code of Criminal Procedure to quash the order issuing non bailable warrant contending that petitioner was exempted from personal appearance on filing an application under Section 205 of Code of Criminal Procedure and therefore, learned Magistrate was not justified in issuing a non bailable warrant. CRMC 3191/09 2 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that as evidenced by Annexure-C medical certificate, petitioner was not in a position to move and in such circumstances, the non bailable warrant is to be recalled or the order is to be quashed. 4. Even if petitioner was granted exemption under Section 205 of Code of Criminal procedure, it was on condition that his counsel must be present and presence of the counsel is to be treated as the presence of the petitioner and evidence could be recorded in the absence of the petitioner. According to the petitioner, neither he nor the counsel was present when the case was taken up. In such circumstances, I find no reason to interfere with the order issuing non bailable warrant. Though learned counsel appearing for the petitioner submitted that petitioner is not in a position to walk, Anneuxre-C medical certificate, issued on CRMC 3191/09 3 8.9.2009, shows that petitioner was advised to take rest only for ten days, as he was unable to walk. That does not mean that he is not in a position to appear before the court thereafter. Petitioner is at liberty to approach the learned Magistrate and apply to recall the non bailable warrant and show cause why neither he nor the counsel was absent on the day when the case was posted. Petition is disposed. 7th October, 2009 (M.Sasidharan Nambiar, Judge) tkv