IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3208 of 2008()
1. GOVINDAN KUTTY, AGED 42 YEARS
... Petitioner
Vs
1. THE LORD KRISHNA BANK LTD.,
... Respondent
2. STATE- REPRESENTED BY PUBLIC PROSECUTOR,
For Petitioner :SRI.M.SASINDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :25/08/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 3208 of 2008
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Dated this the 25th day of August, 2008
ORDER
The petitioner is the 3rd accused in a prosecution for the
offence punishable under Sec.420 IPC. Cognizance has been
taken on the basis of a private complaint filed before the
learned Chief Judicial Magistrate, Kasaragod. The petitioner is
the 3rd accused. Altogether, there are 7 accused persons.
The petitioner was the Manager of the complainant/bank at the
relevant time and the crux of the allegations is that he had
colluded with others to fraudulently deceive the bank. A
private complaint has been filed. Cognizance has been taken
by the learned Magistrate. The petitioner has entered
appearance already and has been enlarged on bail. Some of
the co-accused have filed Crl.M.C.No.937/06 and there was an
order of stay passed in favour of such petitioners granting
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interim stay against continuation of all further proceedings in
the case i.e., C.C.No.103/06. The petitioner has not approached
this Court. The case as such is stayed and the proceedings
cannot continue against the petitioner or others similarly placed.
The petitioner finds the prospect of lucrative employment
abroad. The petitioner wants to get himself exempted from
personal appearance so that he can proceed to such place of
employment abroad in Nigeria to take up employment. The
petitioner apprehends that when he is not available in India, the
learned Magistrate may insist on his personal appearance and he
is hence reluctant to leave India to take up such employment.
The petitioner, who is a law abiding citizen, wanted to take the
permission of the court before leaving for his place of
employment abroad. He therefore filed an application for
exemption from personal appearance under Sec.205 Cr.P.C.
That petition was dismissed by the impugned order. The
petitioner claims to be aggrieved by the impugned order.
2. The learned counsel for the petitioner submits that the
petitioner is being obliged to remain in India unnecessarily. The
allegations against him are without any substance. At any rate,
the petitioner did not want to challenge the cognizance as he felt
that the Calendar Case can itself be got disposed of
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expeditiously. But expeditious disposal was not achieved. The
petitioner was hence obliged to seek exemption from personal
appearance.
3. The learned counsel for the petitioner submits that the
petitioner’s opportunities in life will be foiled by unnecessary
insistence on personal appearance. The petitioner shall appear
before the learned Magistrate as and when directed by the
learned Magistrate within a period of two months from the date
on which such direction is issued. The petitioner shall
scrupulously ensure that he is personally present before court on
any date on which his personal appearance is necessary. There
is no question of identification in this case and the petitioner
shall make appropriate application under Sec.205 or Sec.317
Cr.P.C. for exemption from personal appearance. The learned
Magistrate by the impugned order rejected the said request.
Such rejection works out great prejudice, hardship,
inconvenience and loss to the petitioner. The impugned order
may be set aside subject to any appropriate terms. The
petitioner may be exempted from personal appearance, prays the
learned counsel for the petitioner.
4. I find merit in the prayer of the learned counsel for the
petitioner. I am satisfied that the petitioner can be granted
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exemption from personal appearance and he can be permitted to
leave for his place of employment abroad if that be necessary.
But the petitioner must undertake and ensure that he shall
appear before the learned Magistrate within a period of 2
months from the date on which an order is passed by the learned
Magistrate directing the petitioner to appear in person before
court. Such order need only be written in the order sheet. The
petitioner’s counsel shall convey the same to the petitioner from
time to time, submits the learned counsel for the petitioner.
5. The learned Magistrate did not grant the prayer for
exemption and I am afraid, the reasons shown are not sufficient
or adequate. The impugned order can, in these circumstances,
be set aside and appropriate directions under Sec.205 Cr.P.C.
can be issued.
6. In the result:
(a) This Crl.M.C. is allowed.
(b) The prayer for exemption from personal appearance
made in C.M.P.No.3185/08 is allowed.
(c) The petitioner shall be permitted to appear through his
counsel and claim exemption from personal appearance. His
personal appearance shall not be insisted by the learned
Magistrate unless such presence is indispensable provided he is
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represented by counsel before the court below. The petitioner
shall file an undertaking before the learned Magistrate agreeing
to appear before the learned Magistrate personally within a
period of 2 months from the date on which an order to that effect
is passed by the learned Magistrate by recording such order in
the order sheet. The petitioner shall ascertain such orders from
time to time through his counsel and comply with the same.
7. Hand over a copy of this order to the learned counsel for
the petitioner.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
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