The court can grant permanent exemption from personal appearance under specific conditions as stipulated in Section 205(1) Cr.P.C. when adequate legal representation is provided.

JUDGMENT

The petitioners, the accused in ST No.1764 of 2024 on the file of the Judicial First Class Magistrate Court-II, Mananthavady, seek permanent exemption from appearance under Section 205 (1) Cr.P.C.( Section 228 (1) of BNSS). 2. In view of the nature of the relief that I propose to grant, notice to respondent No.2 is dispensed with. Respondent No.2 filed a complaint before the Judicial First Class Magistrate Court-II, Mananthavady, alleging commission of an offence punishable under Section 138 of the NI Act against the petitioners. Respondent No.2/complainant stated that the petitioners issued a cheque for Rs.32,000/-, and on presentation, the same was dishonoured. The learned counsel for the petitioners submitted that the petitioners are prepared to pay the entire amount due to respondent No.2. The grievance of the petitioners is that the learned Magistrate is insisting on the personal appearance of the petitioners. Petitioner No.1 is a firm having its registered office at Paravur and operating office in Maharashtra. Petitioner No.2 is the Managing Director of the firm.

3. I have heard the learned counsel for the petitioners and the learned Public Prosecutor.

4. The learned counsel for the petitioners submitted that the petitioner No.2 is in Mumbai and he would have to incur huge expenses exceeding the cheque amount towards travel and incidental expenses for appearing before the Court. It is further submitted that the petitioners are appearing before the Court through a lawyer. The petitioners seek permanent exemption from personal appearance before the Court. They undertake that a counsel on their behalf would be present before the Court and that they have no objection in taking evidence in their absence, treating the presence of the counsel as their presence in compliance with Section 317 of Cr.P.C.

5. In Bhanujan v. Jayabhanu [1993 (2) KLT

889], this Court while dealing with the scope of Section 205 Cr.P.C. held that the Magistrate has discretion to dispense with personal appearance of the accused in Court. It was further held that in appropriate cases the Court can, on conditions, allow the accused not to appear in person and permit him to be represented through a counsel.

6. 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.

7. 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.

8. Having regard to the facts of this case, I am of the view that it is not imperative for the Court to insist on the presence of the petitioners/accused during the course of trial.

Therefore, the original petition is disposed of as follows:-

(i) The petitioners are granted permanent exemption from appearance under Section 228 (1) of BNSS and are permitted to be represented by their counsel during the trial.

(ii) The petitioners shall file an affidavit undertaking that a counsel on their behalf will be present in the Court and that they have no objection i