IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 Tr.P(Crl.).No. 89 of 2009 --------------------------------------- ST.82/2009 of J.M.F.C. - II, OTTAPPALAM .................... PETITIONER/ACCUSED: E.V. ASHRAF, S/O. MAMU, EKKARATHU VALAPPIL, ALLANKODE P.O., PONNANI TALUK, MALAPPURAM. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENTS/COMPLAINANT & STATE: 1. MUHAMMED, S/O. AMMAD, KOLADIKKAL, ALLANKODE DESOM, PONNANI TALUK. 2. STATE OF KERALA,R EP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR FOR R2 ADV.SRI.P.RAMACHANDRAN FOR R1 THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Tr.P.(Crl)No.89 of 2009 -------------------------- ORDER Petitioner is the accused and first respondent the complainant in S.T.No.82/2009 on the file of Judicial First Class Magistrate's Court, Ottapalam. This petition is filed to transfer the case from that court to Judicial First Class Magistrate's Court, Ponnani contending that both petitioner and first respondent are residing at Ponnani and except the presentation of the cheque and sending of notice, no part of the essential ingredients of an offence under Section 138 of Negotiable Instruments Act has taken place within the jurisdiction of Judicial First Class Magistrate's Court, Ottapalam and therefore, the case is to be transferred to Judicial First Class Magistrate's Court, Ponnani. 2. Learned counsel appearing for the petitioner submitted that as petitioner and first respondent are residents of Ponnani, it is convenient for both the parties and therefore, the case is to be transferred to TRPC 89/09 2 Ponnani. It is also submitted that the cheque was issued from Ponnani and petitioner is residing at Ponnani and in such circumstances, complaint filed at Ottapalam is only to harass the petitioner and therefore, the case is to be transferred. Learned counsel also submitted that as per the decision of this Court only Judicial First Class Magistrate's Court, Ponnani has jurisdiction to try the case. 3. Learned counsel appearing for the first respondent submitted that though first respondent is a resident of Ponnani, he is having his business at Ottapalam and in such circumstances, it is not at all convenient for him to have the case at Ponnani. Learned counsel also submitted that as the cheque was presented at Ottapalam and was dishonoured from there and notice was also sent from Ottapalam, where first respondent is having his business and so, Judicial First Class Magistrate's Court, Ottapalam has jurisdiction to try the case and therefore, on that ground, the case cannot be transferred. Learned counsel also submitted that petitioner is not even in India and is having his business in Gulf countries and if the grievance is with TRPC 89/09 3 regard to the difficulty of appearance, petitioner could very well seek exemption under Section 205 of Code of Criminal Procedure. 4. When it is the case of the first respondent complainant that though he is a resident of Ponnani, his place of business is at Ottapalam and it is not at all convenient for him to have the case tried at Ponnani and therefore, the case cannot be quashed as sought for, the question whether Magistrate's Court at Ottapalam has territorial jurisdiction to try the case or not is not to be decided in this petition. Parties are at liberty to raise this contention before the learned Magistrate. Petitioner is also at liberty to file a petition to dispense with his presence for the purpose of trial. In such circumstances, I find it not necessary to order transfer. Petition is dismissed. 20th October, 2009 (M.Sasidharan Nambiar, Judge) tkv