IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 Crl.MC.No. 1188 of 2010() ------------------------- ST.NO.168/2007 (LP.379/2009) of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM .................... PETITIONER(S): ACCUSED: ----------------------------------------- G.MANOJ,GANGASADANAM,KADAPPA, MYNAGAPPALLY, KARUNAGAPPALLY TALUK, KOLLAM. BY ADVS. MR. K.SIJU, MR.A.MUHAMMED RAFFI. RESPONDENT(S): STATE: -------------------------------------- 1. M/S.SREE GOKULAM CHIT & FINANCE CO.PVT. LTD.,ROHAN BUILDINGS, KARUNAGAPPALLY REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE M.G.SUNIL KUMAR,S/O.GOPALAKRISHNA PANIKKAR, AYYAPPA JYOTHI,P.K.P.KAVALA,KUZHIMATHICADU P.O., KUNDARA,KOLLAM. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR. S.U.NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 1188 OF 2010 =========================== Dated this the 7th day of April,2010 ORDER Petitioner is the accused in S.T. 168/2007 now pending as L.P.379/2009 on the file of Chief Judicial Magistrate's Court, Kollam taken cognizance for the offence under section 138 of Negotiable Instruments Act on a complaint filed by the first respondent. A non bailable warrant is pending. Petitioner through his counsel filed C.M.P.1973/2010 to dispense with his personal attendance and to conduct the case through the counsel. It was dismissed by Annexure 2 order. This petition is filed under section 482 of the Code of Criminal Procedure to quash Annexure 2 order. 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel is Crl.M.C.1188/2010 2 that when an offence under section 138 of Negotiable Instruments Act is alleged, as held by this court in Jain Babu v. Joseph (2008 (4) KLT 16 Rohit v. Ved vs. State of Kerala (2008(4) KLT 671 and Raju v. State of Kerala (2009(3) KLT SN 45) learned Magistrate is not justified in dismissing the application filed under section 205 of Code of Criminal Procedure for the reason that a non bailable warrant is pending. 4. Though a petition under section 205 of Cr.P.C filed by the accused facing trial under section 138 of Negotiable Instruments Act is to be construed liberally and permission is to be granted without insisting for the personal presence of the petitioner as far as possible, such an application must be filed by the accused and not by the counsel. It is for the accused to say that he will not dispute his identity at the time of trial and in his absence evidence could be recorded treating the presence of his counsel as his presence and he will not challenge the evidence so Crl.M.C.1188/2010 3 recorded before that court or appellate court or revisional court. When there is no such application by the accused, I find no reason to interfere with Annexure 2 order. Petition is dismissed. If a proper application is filed by the petitioner, it is for the learned Magistrate to consider and pass appropriate orders in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006