IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 Crl.MC.No. 3270 of 2010() ---------------------------------- ST.574/2008 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER(S): ACCUSED -------------------------------------- M.RAGHAVENDRA KABADEE, S/O.KARBASSAPPA KABADEE, PROPRIETOR, M/S.SHARDA AU STORES, HUMANABAD ROAD, NEHRU GUNJ, GULBARGA, STATE OF KARNATAKA-685 104. BY ADV. SRI.S.RAJEEV RESPONDENT(S): COMPLAINANT ------------------------------------------------ 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PURE PETRO CHEM INDIA PVT.LTD., PENTA CITY TOWER, KILLIPALAM, THIRUVANANTHAPURAM-1, REPRESENTED BY K.R.PADMAKUMAR, MANAGING DIRECTOR. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3270 OF 2010 --------------------------------------------- Dated 16th September, 2010 O R D E R Petitioner is the second accused in S.T.574/2008 on the file of Additional Chief Judicial Magistrate's Court, Thiruvananthapuram, taken cognizance for the offence under Section 138 of Negotiable Instruments Act on Annexure-1 complaint against five accused. Petitioner is implicated in Annexure-1 complaint as the partner and authorised signatory of M/s.Sharda Auto Stores, a partnership firm. When the summons issued to the petitioner was returned unclaimed, non bailable warrant was issued through D.G.P, Karnataka. Learned Chief Judicial Magistrate has also initiated proceedings Crmc 3270/10 2 under Sections 82 and 83 of Code of Criminal Procedure. Petitioner at that stage filed Annexure-2 petition under Section 205 of Code of Criminal Procedure to grant exemption from personal appearance. By Annexure-4 order it was dismissed. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-4 order and to grant permission under Section 205 of Code of Criminal Procedure. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that all necessary ingredients to grant exemption under Section 205 of Code of Criminal Procedure was stated in Annexure-2 application and in the light of the decision of this court in Jain Babu v. Joseph (2008 (4) KLT 16) learned Magistrate should have granted exemption. Crmc 3270/10 3 4. Annexure-4 order shows that exemption under Section 205(1) of Code of Criminal Procedure was not granted because proceedings under Sections 82 and 83 of Code of Criminal Procedure was initiated against the petitioner on his failure to appear after failing to claim the summons sent by post. 5. As rightly pointed out by the learned counsel, that ground by itself is not a ground to deny exemption under Section 205 of Code of Criminal Procedure in a case facing trial for an offence under Section 138 of Negotiable Instruments Act. But on going through Annexure-2 application it is seen that petitioner has not stated that in his absence evidence in the case could be recorded by the Court in the presence of his counsel, treating the presence of his counsel as his presence and undertaking that he will not challenge such Crmc 3270/10 4 evidence either before that Court or the Appellate Court or Revisional Court. In such circumstances, I find no reason to allow Annexure-2 application as sought for. Petitioner is at liberty to file proper application before Additional Chief Judicial Magistrate, Thiruvananthapuram. If such an application is filed, learned Magistrate to pass orders in accordance with law. It is made clear that proceedings under Sections 82 and 83 of Code of Criminal Procedure are initiated by itself is not sufficient to deny the permission sought for. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.