THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL PETITION No.9542 OF 2010 ORDER: 1 Petitioner is facing trial in STC No.68 of 2009 taken on file by the learned Special Judicial Magistrate of I Class for Excise Munsif Magistrate Chittoor for the offence punishable under section 138 of Negotiable Instruments Act. It appears, the petitioner filed an application under section 45 of the Indian Evidence Act requesting the court below to send the said cheque to an expert. When the said application was taken up for hearing on 05.01.2010 the petitioner was absent. However, the counsel for the petitioner stated that he is ready to proceed with the arguments of the said application, but, as the petitioner was absent, an application under section 317 of Cr.P.C. was filed. However, the court below refused to condone his absence and issued N.B.Ws. Coming to know of the N.B.Ws. being issued against him, the petitioner approached the court below and filed another application under section 70(2) Cr.P.C. requesting the court to recall the said warrants. However, as the petitioner was not present on that day, the court below dismissed the said application by its order dated 08.03.2010. The same is questioned in this petition. 2 In my considered view, the court below is justified in dismissing the said application. When an application under section 70(2) Cr.P.C. is filed, normally the accused shall be present in the court and it is only in rarest of rare cases where the petitioner is able to establish that his presence is impossible, then only the court may pass an order in his absence. However, as the petitioner has expressed his willingness to appear before the court and file an application under section 70(2) Cr.P.C., this court is of the view that the petitioner can be given an opportunity to appear before the court below. 3. Accordingly, this petition is disposed of with a direction to the petitioner to surrender before the court below within a period of fifteen days from today and on such surrender and an application under section 70(2) Cr.P.C. being filed, the court below may consider the said application and pass necessary orders to recall the said warrants pending against the petitioner. -------------- 24.09.2010 Kvsn