IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3593 of 2009()
1. VENUGOPAL, PROPRIETOR,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY
... Respondent
2. M/S.ALAPATT TRADING CORPORATION
For Petitioner :SRI.S.MOHANAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/11/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.3593 OF 2009
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Dated 16th November 2009
O R D E R
Petitioner is the accused in S.T.200/1999
now pending as L.P.90/2002 on the file of Additional
Chief Judicial Magistrate, Thiruvananthapuram taken
cognizance for the offence under Section 138 of
Negotiable Instruments Act on a complaint filed by
second respondent. A non bailable warrant is pending
against the petitioner. According to the petitioner he
was unaware of the pendency of the case earlier as he
was not served with any summons. Grievance of the
petitioner is that after he came to know about non
bailable warrant, petitioner filed C.M.P.4800/2009 to
re-call the non bailable warrant and also filed a
petition for exemption under Section 205 of Code of
Criminal Procedure. But the latter application was not
received by the learned Magistrate and
C.M.P.4800/2009 was dismissed by Annexure-3 order, for
the reason that accused did not appear. This petition
is filed under Section 482 of Code of Criminal
Crmc 3593/09
2
Procedure to quash Annexure-3 order and to direct
learned Magistrate to receive the petition filed under
Section 205 of Code of Criminal Procedure.
2. Learned counsel appearing for the
petitioner was heard.
3. Relying on the decision of this court in
Rahit S.Ved v. State of Kearla (2008 (4) KLT 671)
learned counsel submitted that dismissal of the
application for re-calling warrant on the ground that
petitioner did not appear is illegal in view of
decision of this court in that case. Relying on the
decision in Jain Babu v. Joseph (2008 (4) KLT 16) it
is argued that failure to receive the petition filed
under Section 205 of Code of Criminal Procedure, on
the ground that a non bailable warrant is pending is
in violation of the mandate given by this court in
Jain Babu’s case.
4. This court in Rohit’s case (supra)
considered the question whether an accused who is
alleged to have committed an offence under Section 138
of Negotiable Instruments Act and against whom
warrant is pending can apply through the counsel for
exemption under Section 205 of Code of Criminal
Crmc 3593/09
3
Procedure and plead guilty or not guilty. This
court held that fact that a warrant has been issued
later, after issuing summons under Section 204 of
Code of Criminal Procedure, is not a reason to refuse
exemption under Section 205 and court shall not insist
for personal presence of the accused to consider the
application for exemption to plead guilty or not
guilty. In Jain Babu’s case (supra) this court
considered the question whether accusation that person
committed an offence under Section 138 of Negotiable
Instruments Act is a sufficient circumstance to grant
exemption under Section 205 of Code of Criminal
Procedure. It is found that fact that it is a
technical offence and involves no moral turpitude
are sufficient to mandate that in a prosecution under
Section 138, discretion under Section 205 of Code of
Criminal Procedure must be exercised in favour of the
accused. Question whether personal presence of the
petitioner, even if a non bailable warrant is
pending, is to be insisted was also considered and
held that even when warrant of arrest had been issued
earlier, power under Section 205 can be invoked by the
court. In such circumstances, Annexure-3 order passed
Crmc 3593/09
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by the learned Magistrate is illegal and is quashed.
Learned Magistrate is directed to re-call non bailable
warrant issued as sought for in C.M.P.4800/2009 and
consider the application filed by the petitioner under
Section 205 of Code of Criminal Procedure for
exemption. Petitioner to present the application
under Section 205 of Code of Criminal Procedure,
before the Magistrate and Magistrate shall receive the
same and pass orders in accordance with law as
directed by this court in Jain Babu’s case (supra).
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.