SIVADASAN RAMAN Vs. V. RAJAN NANU ACHARI

JUDGEMENT

(1.) PETITIONER is the complainant in S. T. No. 49 of 2010 of the Court of learned Judicial First Class Magistrate, Nilambur. Proceeding were initiated for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, "the Act"). It would appear that for quite some time, respondent No. I/accused did not appear in court and coercive steps were being taken against him. While so, on 20.10.2010 respondent No. 1 appeared through counsel and filed Cri. M. P. No. 4038 of 2010 seeking exemption under Section 205 of the Code of Criminal Procedure (for short, "the Cr. P. C"). In that application respondent No. 1 contended that he is working at Coimbatore. Petitioner resisted the application claiming that respondent No. 1 is very much available at Nilambur and that he is a broker working at that place. Learned Magistrate has allowed that application and exempted personal appearance of respondent No. 1 until further orders. That order is under challenge. It is contended by learned counsel that the decision in Jain Babu v. Joseph (2008(4) KLT 16) which permitted permanent exemption with certain directions has been overruled by the Supreme Court in TGN Kumar v. State of Kerala and Ors. (2011 (1) KHC 142): (AIR 2011 SC 708) leaving it to the Magistrate concerned to exercise discretion vested with him under Section 205 of the Code in individual cases as to whether exemption could be granted. Learned counsel submitted that to grant exemption under Section 205 of the Code the Magistrate has to record reason but such reasoning is absent in Annexure-A5, order.

(2.) IT is true that in Annexure-A5, order it is not stated in so many words the reason for granting exemption from personal appearance. Bui I must bear in mind that learned Magistrate passed the order on Cri. M. P. No. 4038 of 2010 where respondent No. 1 claimed that since he is working at Coimbatore it is not possible for him to appear regularly in court. It is true that the said claim was disputed by petitioner but, it is on the face of the said claim of respondent No. 1 that learned Magistrate has passed Annexure-A5, order. In view of that, I do not find reason to interfere with the order for the mere reason that the order does not state reason. The order does not cause any prejudice to the petitioner. It is also not as if exemption is granted to respondent No. 1 forever. Instead Annexure-A5, order states that personal appearance of respondent No. 1 is exempted until further orders. I am not inclined to think that order passed by the learned Magistrate affected any right of petitioner so that this court is required to interfere under Article 227 of the Constitution. Petition is dismissed. Petition dismissed.