IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 572 of 2007()
1. SUBRAMANIAN P.,
... Petitioner
Vs
1. M.SUDHEESH KUMAR,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.RAJU ABRAHAM PULPARA
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :07/08/2007
O R D E R
R.BASANT, J
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Crl.M.C. No.572 Of 2007
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Dated this the 7th day of August, 2007
ORDER
The petitioner faces indictment in a prosecution under Section
138 of the Negotiable Instrument Act. According to the petitioner
proceedings initiated against him totally lacks bona fides. Two
blank signed cheques were allegedly issued by the petitioner to the
brother of the 1st respondent as security. A notice of demand was
issued by the said brother to the petitioner demanding an amount
of Rs.25,000/- on the strength of one of those two cheques. A copy
of that notice is produced as Annexure II. The said notice was
replied to by Annexure III reply notice through the counsel. A
demand was made in that reply that the two cheques be returned
accepting the transaction as closed. No further action was taken by
the brother of the 1st respondent after receipt of Annexure III
notice. That Annexure III notice was issued on 11.07.01. Long
after on 27.1.04, respondent herein staked an independent claim
under the other of those two cheques. That notice was received by
the petitioner. But unfortunately the petitioner did not send a
formal reply. According to the petitioner, he had met the 1st
Crl.M.C.No.572 of 2007 2
respondent and explained to the 1st respondent the previous
proceedings which ended with Annexure III reply notice. In the
hope that the 1st respondent shall not initiate any action , the
petitioner did not take any further action.
2. The petitioner now finds that in the absence of reply to
Annexure IV notice, proceedings were initiated against him before
the learned Magistrate under Section 138 of the Negotiable
Instrument Act. The petitioner entered appearance through
counsel. But the petitioner was not able to raise sufficient sureties
before the learned Magistrate and claim bail. He applied for
exemption from personal appearance. The said request was not
allowed by the learned Magistrate. The learned Magistrate has now
issued a non bailable warrant against the petitioner. The petitioner
in these circumstances prays that it may be directed that the non
bailable warrant should not be executed. He further prays the
petitioner may be permitted to appear before the learned Magistrate
and claim bail on his own bond. It is further prayed that he may be
permitted to appear through counsel also. Notice was issued to the
respondents. Notice was given and it was served on the counsel for
the 1st respondent also, but there is no representation for the 1st
respondent. Exceptional circumstances call for exceptional
Crl.M.C.No.572 of 2007 3
response from the Court. This I am satisfied is one such case. I
am satisfied in these circumstances, that the prayers made by the
petitioner, which is exceptional in nature can certainly be granted.
3. This petition is in these circumstances allowed. The
following directions are issued.
i) The non bailable warrant issued against the petitioner shall
not be executed till 20.8.07.
ii) On or before that date the petitioner can appear before the
learned Magistrate and the learned Magistrate shall release the
petitioner on his own bond for appropriate amount.
iii) The petitioner can make an application for exemption from
personal appearance before the learned Magistrate. The learned
Magistrate shall allow such request and permit the petitioner to
appear through counsel on all dates of posting unless the learned
Magistrate issues specific directions for appearance of the petitioner
personally for any specific purpose.
Hand over a copy of this order to the learned counsel for the
petitioner.
(R.BASANT, JUDGE)
sj