IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 Crl.MC.No. 4674 of 2008(F) ------------------------------------- CC.1829/2004 OF JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM. .................... PETITIONERS/ ACCUSED: ------------------------------------- 1. V.P.RAJAGOPAL, S/O PRABHAKARAN, PAGODA HOUSE, MATTANCHERRY.P.O, ERNAKULAM DISTRICT, PROPRIETOR, 'KUMAR TRADE LINKS'. 2. 'KUMAR TRADE LINKS',REPRESENTED BY PROPRIETOR, V.P.RAJAGOPAL, S/O PRABHAKARAN, PAGODA HOUSE, MATTANCHERRY.P.O, ERNAKULAM DIST. BY ADV. SRI.ASHIK K.MOHAMMED ALI. RESPONDENTS/ STATE & COMPLAINANT: ------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. T.S.SOMASUNDARAN, S/O SANKARAN NAIR, THACHUKUZHIYIL HOUSE, EDAKATTUVAYAL.P.O, MULANTHURUTHY (VIA). BY PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4674 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of December, 2008 O R D E R The petitioners face indictment in a prosecution under Section 138 of the N.I. Act. On 29.11.2008 when the case came up for trial, the petitioners were absent and their counsel was not present when the case was taken up for trial. The learned Magistrate thereupon issued non-bailable warrant to the accused and notice to the sureties. The petitioners are aggrieved by that order passed by the learned Magistrate on 29.11.2008. According to the petitioners there was no wilful default or laches on their part. The counsel had represented before the court when the case was called first that the same can be taken up after some time. The counsel was engaged in another court and he expected to return and participate in the trial. The counsel could not reach the court in time and that is why there was no representation when the case was called. Crl.M.C.No. 4674 of 2008 2 2. Report of the learned Magistrate was called for. The report shows that the counsel was absent when the case was called ultimately for trial. 3. I take note of the fact that the accused was enlarged on bail on1.11.2008. It was on 29.11.2008 that the warrant was issued against the petitioners on account of the absence of their counsel and themselves. 4. Having considered all the relevant circumstances, I am satisfied that the prayer of the petitioners can be accepted. I may hasten to observe that it is certainly the duty of the counsel to make appropriate representation before the court when the case is called. Even assuming that the senior counsel is not there, he must have ensured that proper representation is made before the Magistrate. This was a case in which, as per the report of the Magistrate, there was no representation whatsoever when the case was called for trial. 5. Be that as it may, I am satisfied that a lenient view can be taken and appropriate directions can be issued in favour of the petitioners. Crl.M.C.No. 4674 of 2008 3 6. This Crl.M.C. is accordingly allowed. The order dt.29.11.2008 cancelling the bail bond and issuing non-bailable warrant to the petitioners and notice to the sureties is set aside. The petitioners shall be permitted to continue on bail on the strength of the bond executed by them on 1.11.2008. (R. BASANT) Judge tm