Pushpavally P.R. vs The State Of Kerala on 17 July, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 2336 of 2009()


1. PUSHPAVALLY P.R.,AGED 57 YEARS,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA,
                       ...       Respondent

2. N.R.RAJAMMA,VISWAVILASAM HOUSE,

                For Petitioner  :SRI.T.MADHU

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :17/07/2009

 O R D E R
                     M. SASIDHARAN NAMBIAR, J.
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                        Crl.M.C. No. 2336 OF 2009
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                   Dated this the 17th day of July, 2009

                                    O R D E R

Petitioner is the accused in CC No.140/2008 on the file of

Judicial First Class Magistrate Court-II, Ranni. Second respondent is

the complainant. Learned Magistrate took cognizance of the offence

under Section 138 of Negotiable Instruments Act on the complaint

filed by the second respondent. At the trial stage petitioner filed CMP

No.247/09 under Section 205 of Code of Criminal Procedure to grant

him exemption from personal appearance. Under Annexure A1

order learned Magistrate dismissed the petition holding that

evidence was partly recorded and thereafter petitioner did not appear

and absconded and therefore bail was cancelled and at that stage

petitioner is not entitled to get the exemption. Learned counsel

appearing for the petitioner was heard.

2. When the petitioner did not appear and bail was cancelled

and non-bailable warrant was issued. It is pending. Such an

accused is not entitled to get exemption under Section 205 of Code

of Criminal Procedure without surrender. Petitioner has to surrender

before the Court and thereafter file an application for permanent

Crl.M.C: 2336/09
-:2:-

exemption, stating the necessary ingredients to satisfy the

Magistrate that permanent exemption is to be granted. If evidence is

to be recorded, in the absence of the petitioner to grant exemption

under Section 205, necessarily he must file an affidavit stating that

evidence can be recorded in his absence treating presence of his

counsel as his presence and undertaking that the evidence so

recorded will not be challenged before that court or in appeal or in

revision. If such an affidavit is filed, I find no reason to believe that

Magistrate will not grant exemption. With the above observations the

petition is disposed of.

M. SASIDHARAN NAMBIAR,
JUDGE

ttb