Mayadevi S v. V.M. Anilkumar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939** ## **Crl.MC.No. 5185 of 2017 ()** **--------------------------IN CC 202/2017 of J.M.F.C. - II, PERUMBAVOOR DATED 01-07-2017 -----------------------------------------------** **PETITIONER(S)/ACCUSED : -----------------------------------------** ## **MAYADEVI S** ## **D/O SIVARAMAN NAIR, POTHINALIL HOUSE, HOUSE NO.6/292, THOPPINAKAM, MATTANCHERY, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.M.J.SANTHOSH** **RESPONDENT(S)/COMPLAINANT :** **---------------------------------------------------** ## **1. V.M.ANILKUMAR** - **S/O MURALIDHARAN NAIR, VAZHAPPANALY HOUSE, AYMURI P.O., KOOVAPPADY VILLAGE, PERUMBAVOOR.** ## **2. STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VS** ## **Crl.MC.No. 5185 of 2017 ()** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **--------------------------------------** **ANNEXURE A1: THE CERTIFIED COPY OF COMPLAINT DATED 3.3.2016. ANNEXURE A2: THE CERTIFIED COPY OF PETITION U/S DATED 3.3.16. ANNEXURE A3: THE CERTIFIED COPY OF PETITION TO CONDONE THE ABSENCE OF THE ACCUSED DATED 1.7.17. ANNEXURE A4: THE CERTIFIED COPY OF PETITION IN CRL.M.P.NO.88/17 TO RECALL THE WARRANT DATED 1.7.2017. ANNEXURE A5: THE CERTIFIED ORDER IN CRL.M.P.NO.88/17 DATED 1.7.17. ANNEXURE A6: THE CERTIFIED COPY OF B-DIARY PROCEEDINGS IN C.C.NO.202/17.** **RESPONDENT(S)' EXHIBITS NIL ------------------------------------------** **/TRUE COPY/** **PA TO JUDGE** **VS** ## ALEXANDER THOMAS, J. ============================= Crl.M.C. No.5185 of 2017 ============================ Dated this the 1[st] day of August, 2017 ## ORDER The petitioner herein is the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the NI Act' for short) in C.C.No.202/2017 on the files of the Judicial First Class Magistrate Court-II, Perumbavoor, instituted on the basis of a complaint filed by the first respondent herein. The dishonour cheque dated 13.01.2016 involved in this case is for Rs.8,50,000/-. It is stated that the petitioner is a housewife and she is now residing in Ahmadabad, Gujarat with her husband and family. 2. The complaint was originally pending before the Judicial First Class Magistrate Court-I, Perumbavoor as S.T.No.1250/2016. On 06.09.2016, the petitioner had appeared before the said court at Perumbavoor and was enlarged on bail. On that day, the petitioner had moved the petition under Section 205 of Cr.P.C. for permanent exemption from personal appearance. The said petition was posted for orders to 23.02.2017. On 23.02.2017, the present case in Crl.M.C. No.5185 of 2017 -2- S.T.No.1250/2016 was not called before the court at Perumbavoor and after the roll call, the counsel for the petitioner had got information that the case was transferred to the Judicial First Class Magistrate Court-II, Perumbavoor and that notice would be issued from that court for appearance. On 23.2.2017, the case was renumbered as C.C.No.202/2017 and called before the Judicial First Class Magistrate Court-II, Perumbavoor. On that day, both parties were absent and no notice was issued to either the parties or to the counsel and the case was adjourned to 17.03.2017. The counsel for the petitioner could not appear before the Judicial First Class Magistrate Court -II, Perumbavoor on 17.03.2017 and 25.04.2017 as he was not aware of the posting date and the renumbered case number. 3. On 01.07.2017 the petitioner's counsel had appeared before the court below and filed an application to condone the absence of the accused. The said petition was dismissed. The counsel for the petitioner has filed another petition as Crl.M.P.No.88/2017 to recall the warrant against the petitioner. But the said petition was also dismissed stating that the accused is not personally present before the court. Thereafter the Judicial First Class Magistrate Court -II, Crl.M.C. No.5185 of 2017 -3- Perumbavoor has cancelled the bail application also on that date. It is stated that the above said proceedings are not reflected in the B-Diary proceedings dated 01.07.2017. It is further stated that no notice was issued either to the accused or to the counsel for the accused, from the Judicial First Class Magistrate Court -II, Perumbavoor after transferring the case. It is also stated that the presence of the accused was not highly necessary on 17.03.2017 and that more over the application of the petitioner filed under Section 205 of Cr.P.C. for exemption from personal appearance was also pending consideration of the Magistrate Court. The petitioner is a housewife and she is stated to be a mother of two children and that she is now residing at Gujarat with her husband and family. Further that even though the learned counsel for the petitioner had appeared before the court below on 01.07.2017 and moved an application as CMP No.88/17 for recalling the warrant, the court below has dismissed the said petition and has cancelled the bail. In the light of these aspects that the petitioner has filed the instant Crl.M.C. with the following prayer. “For these and among other grounds to be urged at the time of hearing, it is humbly prayed that this Hon'ble Court be pleased to set aside the order in Crl.M.C. No.5185 of 2017 -4- Crl.M.P.No.88/2017 dated 01.07.2017 in C.C.No.202/2017 of the Judicial First Class Magistrate Court-II, Perumbavoor and allow the petitioner to continue her bail bond already executed, for the ends of justice.” 4. Heard Sri.M.J.Santhosh, the learned counsel for the petitioner/accused and Sri.Justine Mathew, the learned Public Prosecutor appearing for R2 State. In the nature of the orders proposed to be passed in this petition, notice to R1(complainant) is dispensed with. 5. While admitting this case on 27.07.2017, this Court had also passed an interim order on Crl.M.A.No.8368/2017 in this Crl.M.C., the operative portion of that order reads as follows:- “The operation and implementation of the order dated 01.07.2017 passed by the Judicial First Class Magistrate Court-II, Perumbavoor, in C.C.No.202/2017, as referred to in Annexure-A6, whereby the bail of the petitioner has been cancelled, etc. will remain stayed. It is also ordered that the non bailable warrant issued against the petitioner will also be suspended until further orders. The petitioner undertakes to appear before the learned Magistrate on 28.07.2017. It is also pointed out that the Crl.M.C. No.5185 of 2017 -5- petitioner has earlier filed application under Section 205 of the Cr.P.C. for personal exemption. In view of the order granting stay of the bail cancellation order, it is made clear that the petitioner will remain on bail as granted to her earlier. Learned Magistrate will consider the application for personal exemption under Section 205 of the Cr.P.C. in the light of the legal principles laid down in Reddy v. Excel Glasses Ltd. reported in 2010 KHC 548 = 2010 (3) KLT SN 11 (C.No.14), as well as the decisions as in AIR 2001 SC 3625 & 1989 Crl.L.J. 523, etc. and necessary orders should be passed on that application. The fact that the petitioner is a lady, who is hailing from Gujarat, should also be taken into consideration by the learned Magistrate. List the matter for orders at 10:15 A.M. on 31.07.2017.” 6. Today when the matter has been taken up for consideration the learned counsel for the petitioner submits that the petitioner had personally appeared before the Magistrate Court on 28.07.2017 as directed by this Court and further her plea for not guilty was recorded by the learned Magistrate. Further that the application earlier filed by the petitioner for personal exemption under Section 205 of Cr.P.C. has now been adjourned to 16.09.2017 for objections of the first respondent/complainant. Crl.M.C. No.5185 of 2017 -6- 7. So the main issue to be considered is as to the legality and correctness of the orders passed by the learned Magistrate in cancelling the bail granted earlier to the petitioner and issuing non bailable warrant against her. It is not in dispute that the petitioner had earlier personally appeared before the trial court on 06.09.2016 and she had secured bail. She is a lady, who is now settled in Gujarat with her husband and daughters. This Court in the judgment in Reddy v. Excel Glasses Ltd. reported in 2010 KHC 548 = 2010 (3) KLT SN 11 (C.No.14), has held that the Magistrate can allow an accused to make even the first appearance through counsel and even before execution of bail bond, for sufficient reasons, the accused is entitled to apply for exemption from personal appearance. It was held by this Court in that judgment that the accused can apply for exemption from personal appearance even before executing a bail bond for sufficient and necessary reasons, the accused could apply for exemption from personal appearance and in the light of the decisions in Bhaskar Industries Ltd v. Bhiwani Denim & Apparels reported in 2001 (7) SCC 401 = AIR 2001 SC 3625, and the decision in 1989 Crl.L.J. 523 as well as the provisions contained in Sections 205 & 317 Cr.P.C., that in appropriate cases, the Crl.M.C. No.5185 of 2017 -7- Magistrate can allow an accused to even make his first appearance through counsel. Here, in the instant case though the petitioner is a lady who is permanently settled in Gujarat, and as a law abiding person, appeared before the learned Magistrate on 06.09.2016 and she had secured bail. She had also duly filed an application seeking personal exemption by virtue of the laws contained in Section 205 Cr.P.C. and that application was pending consideration. In Bhaskar's case (supra) it has been held by the Apex Court that discretion need be exercised in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons, the magistrate feels that dispensing with the personal attendance of the accused would be in the interest of justice and that the Magistrate should pass orders which should not result in unnecessary harrassment to the accused and at the same time does not cause any prejudice to the complainant. Judging the impugned orders of the Magistrate, in the light of the legal principles laid down in the above said reported decision, this Court has no hesitation to hold that the said impugned orders passed by the learned Magistrate, cancelling the bail granted to the petitioner and in issuing non Crl.M.C. No.5185 of 2017 -8- bailable warrant against her are illegal and improper. The learned Magistrate should have kept in mind the legal principles laid down in Bhaskar's case (supra) wherein then Lordships of the Supreme Court has clearly held that the discretion need be exercised in rare instances where due to the fare distance at which the accused resides or carries no business or on account of any physical or other good reasons the Magistrate feel that dispensing with the personal attendance of the accused would be in the interest of justice. Further then lordships of the Apex Court has clearly held that the order of the Magistrate passed in such cases should be one which does not result in unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant. Therefore, this Court is convinced that the judicial intervention by invoking the extraordinary powers conferred by this Court under Section 482 of Cr.P.C. is highly imperative in the facts and circumstances of the case. 8. Accordingly, the impugned orders passed by the learned Magistrate cancelling the bail granted to the petitioner and in ordering non bailable warrant against her would stand set aside, rescinded and recalled. Consequently, all further Crl.M.C. No.5185 of 2017 -9- proceedings taken in pursuant thereof will stand automatically recalled. 9. The learned Magistrate shall ensure that necessary orders are passed on the application filed by the petitioner for personal exemption under Section 205 of Cr.P.C. after granting a reasonable opportunity of being heard the counsel for the accused and the counsel for the complainant. A just fair and reasonable decision shall be rendered by the Magistrate on the above said application, taking into account the above said legal principles laid down in the aforecited judgments. With these observations and directions, this Crl.M.C. stands finally disposed of. Sd/ALEXANDER THOMAS, JUDGE VS