IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST MARCH 2011 / 10TH PHALGUNA 1932 CRL.MC.NO. 638 OF 2011() -------------------------------------- ST. NO.2629/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-VI, ERNAKULAM PETITIONER(S): ---------------------- HARI K.B., S/O.KUTHILICAL BANGLAVE, THIRUPPURAM P.O., NEYYATTINKARA, POOVAR 695 133. BY ADV. SRI.N.MANU THAMPI RESPONDENT(S): --------------------------- 1. ING VYSYA BANK LTD., RETAIL LBANKING DIVISION, SHEMA BUILDING, RAVIPURAM, REPRESENTED BY THE POWER OF ATTORNEY HOLDER RAVEENDRA PAI CBCD, REGIONAL OFFICE, ERNAKULAM - 683 008. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.638 of 2011 -------------------------------------- Dated this the 1st day of March, 2011. ORDER Notice to respondent No.2 is dispensed with in view of the order I proposed to pass. Learned Public Prosecutor takes notice for R2. 2. Petitioner is accused in S.T. No.2629/2007 of learned Judicial First Class Magistrate-VI, Ernakulam. He was convicted for offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to undergo imprisonment for three months. There is also a direction for payment of the cheque amount as compensation. 3. Petitioner says that as he was suffering from severe Lumbar Intervertebral Disc Pro-Lapse since 5.6.2010 and was undergoing treatment, he could not appear when the judgment was pronounced. Petitioner applied for certified copy of judgment, but that application was rejected by the learned Magistrate vide Annexure-A5 order dated October 18, 2010 stating that petitioner has to appear in person to receive the sentence. That order is under challenge. Learned counsel for petitioner submitted that petitioner should have been given a copy of the judgment. Crl.MC No.638/2011 2 4. Reading of Sub sections (5) and (6) of Section 353 of the Code of Criminal Procedure (for short, “the Code”) shows that except when the accused is exempted permanently from appearance and the sentence is one of fine only or he is acquitted, he has to be brought up before court if he is in custody or appear in court if he is on bail to receive the sentence. In the present case sentence is one of imprisonment. Nor was petitioner permanently exempted from appearance. Hence presence of petitioner was necessary when the sentence was pronounced. Admittedly petitioner was not present when sentence was pronounced. In the circumstances, petitioner is required to appear before learned Judicial First Class Magistrate to receive the sentence. May be, sentence of imprisonment imposed being less than for three years, petitioner is entitled to be released on bail as provided under Section 389 (3) of the Code. 5. Petitioner has the apprehension that when he appears before learned Magistrate, he may be remanded to custody. I make it clear that it is open to the petitioner to serve copy of application for suspension of sentence under Section 389 (3) in advance of his appearance before the court to the counsel for the second respondent and the Public Prosecutor. If any application for suspension of sentence is preferred, learned Magistrate shall consider that Crl.MC No.638/2011 3 application and pass appropriate orders as early as possible having regard to the nature of the offence. On such appearance, copy of the judgment shall be given to the petitioner as provided under the Rules. With the above directions, this petition is closed. THOMAS P.JOSEPH, Judge. cl