B. Rajendra Shenoy vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner seeking a direction to the magistrate to allow him to appear through Counsel u/s 482 of Code of Criminal Procedure.

It is alleged in the petition that he is arrayed as 4th accused in S.T. No. 133/13 pending before Judicial First Class Magistrate Court, No-II, Aluva, which was taken on the file on the basis of a private complaint filed by the second respondent alleging offence u/s 138 of the Negotiable Instruments Act. The first accused in the case is the firm and other accused persons are Directors of the first accused firm. The personal presence of the petitioner is not required. So, the petitioner has no other remedy except to approach this court seeking the following relief:

To direct court below to permit the petitioner to appear through counsel and exempt his personal appearance in S.T. No. 133/2013 of the Chief Judicial Magistrate Court II, Aluva, pending before the court below.

Considering the nature of relief claimed in the petition, this court felt that the petition can be disposed of at the admission stage itself after hearing the Counsel for the petitioner and the learned Public Prosecutor and dispensing with notice to the second respondent.

The Counsel for the petitioner submitted that he is a senior citizen unable to travel and he is not in discharge of the day to day affairs of the first accused firm as well and his physical presence is not required for the disposal of the case.

The application was opposed by the Public Prosecutor.

It is an admitted fact that the petitioner has been arrayed as 4th accused in S.T. No. 133/2013 pending before Judicial First Class Magistrate Court, No-II, Aluva which was taken on file on the basis of a complaint filed by the second respondent against 4 accused persons including the petitioner alleging offence u/s 138 of the Negotiable Instruments Act. It is true that in cases where the identity of the accused is not in dispute, the presence of the accused is not required for the purpose of conducting the case. But, at the same time, for the purpose of applying for exemption, he will have to first appear and take bail to ensure his presence on the future dates if it is required. On getting bail, if he applies for exemption u/s 205 of Code of Criminal Procedure, then the court can consider that application and pass appropriate orders. So, without appearing before the court below, this court cannot straight away order personal exemption as claimed by the petitioner in this case. So, the petition is disposed of as follows:

If the petitioner appears before the Judicial First Class Magistrate Court, No-II, Aluva in S.T. No. 133/13 pending before that court and moves for bail as well as for personal exemption, then, the learned magistrate is directed to consider and dispose of those applications, fixing the date if any for the appearance of the accused during the course of trial and pass appropriate orders in accordance with law on the date of filing of the application itself.

With the above direction and observation, the petition is disposed of.

Office is directed to communicate this order to the concerned court immediately.