The court established that under Sections 205 and 317 of the Cr.P.C., an accused may be exempted from personal appearance if certain conditions are met.

O R D E R

The petitioner is the accused in C.C.No.1475/2018 on the file of the Judicial First Class Magistrate Court-I, Thrissur. The complainant is a private limited chit fund company having its head quarters at Thrissur.

2. The accused is alleged to have committed offence punishable under Section 138 of the Negotiable Instruments Act .

3. The petitioner seeks transfer of the Calender Case from the Judicial First Class Magistrate Court-I, Thrissur to a Magistrate Court in Thiruvananthapuram on the ground that a surety to the transaction had filed a private complaint against the party respondent/complainant before a Magistrate Court in Thiruvananthapuram. This Court finds no reason to grant the relief of transfer in view of the grounds pleaded.

4. The learned counsel for the petitioner prayed for granting permanent exemption to the petitioner from appearance before the Trial Court.

5. In M/s Bhaskar Industries Ltd v. Bhiwani Denim and Apparels Ltd and Others [AIR 2001 SC 3625], the Apex Court held that Section 205 (1) of Cr.P.C. permits the Magistrate to enable an accused to get permanent exemption from appearance on the following conditions:

(1) accused shall undertake that he would not dispute his identity as the particular accused in the case.

(2) he should undertake, that the counsel in his behalf should be present in Court.

(3) that he has no objection in taking the evidence in his absence treating the presence of the counsel as his presence.

6. This Court in Moosa Pattupura v. State of Kerala [ 2022 (2) KHC 293 ] held that Section 317 (1) Cr.P.C. empowers the Judge or Magistrate to dispense with the personal attendance of the accused and proceed with trial in his absence. This Court further observed that ordinarily the Court should be generous and liberal under Sections 205 and 317 of Cr.P.C. and grant exemption to the accused from personal appearance unless the presence is imperatively needed or becomes indispensable.

7. Having regard to the nature of the offence alleged this Court is of the view that the personal appearance of the petitioner/accused is not required before the Magistrate’s Court. Therefore, the Transfer Petition is disposed of with the following directions:-

(i) If the petitioner makes an application under Section 228 of the BNSS, the learned Magistrate shall consider the application in the light of the precedents referred to above.

(ii) It is made clear that the petitioner need not appear before the Trial Court at Thirssur for making the application under Section 228 of the BNSS.

(iii) He is at liberty to move the application through his counsel.