IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Tr.P(Crl.).No. 82 of 2008() --------------------------- ST.5/2007 of J.M.F.C. - III, KOCHI .................... PETITIONER(S): ACCUSED: ------------------------------------------ LATHEEF.P., 42 YEARS, S/O.HAMSA, PANCHARA HOUSE, KAMBALAKKAD PO., KALPETTA, WAYANAD DISTRICT. BY ADV. SRI.GEORGE SEBASTIAN RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------------------------------------- 1. M/S.PENINSULAR MULTI COMEX SERVICE LTD., REG.OFFICE AT S.T.REDDIAR & SONS BUILDING, II FLOOR, VEEKSHANAM ROAD, ERNAKULAM. COCHIN-682035, REPRESENTED BY ITS LEGAL OFFICER, K.S.ABDUL KAREEM, AGED 59 YEARS, S/O.SAYED MUHEMMED, 36/248, COCHIN-18. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR,. HIGH COURT OF KERALA. ADV. SMT. MARY TERASA DIAS FOR R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB – R2 THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - T.P.(Crl).No. 82 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December, 2008 O R D E R The petitioner faces indictment in a prosecution under Section 138 of the N.I. Act. That prosecution was initiated by the complainant, the respondent herein. The prosecution is now pending before the J.F.M.C.-III, Kochi. The petitioner belongs to Kalpetta. He has now come to this court with a prayer that the case may be transferred to the court of the J.F.M.C.-I, S. Battery. 2. The learned counsel for the petitioner submits that the entire transaction took place at Kalpetta and that no part of the cause of action has arisen outside Kalpetta. The complainant had an establishment at Kalpetta and they had offered to have on line transaction through a terminal installed at Kalpetta. Amounts were payable in that transaction and payments were made at Kalpetta. The complainant had taken the cheque to their registered office at Kochi and had handed over the same for collection in the bank there. Merely because the complainant T.P.(Crl).No. 82 of 2008 2 had chosen to present the cheque at their bank at the registered office for collection, the Court at Kochi cannot have jurisdiction in the light of the decision in Santhoshkumar v. Mohanan (2008 (3) KLT 461). The counsel submits that significantly there is no whisper of an allegation in the complaint which can confer jurisdiction on the Courts at Kochi. The learned counsel for the respondent, on the other hand, contends that the payment was made by cheque to the registered office of the complainant at Kochi and that no transaction had taken place at Kalpetta. He further contends that in the light of the proviso to Section 138, to avoid the prosecution, payments must have been made to the complainant at the registered office at Kochi and in this view of the matter also the court at Kochi has jurisdiction. 3. I have considered all the relevant circumstances. There is no specific averment anywhere in the complaint which can confer jurisdiction for Courts at Kochi. Of course, it has come out that the registered office of the complainant is at Kochi and that the cheque was presented for collection to a bank at Kochi where the registered office maintained an account. I find merit in the submission of the learned T.P.(Crl).No. 82 of 2008 3 counsel for the petitioner that even the averments in the reply notice sent by the petitioner without any legal assistance to the counsel for the complainant would convincingly reveal that the transaction took place at Kalpetta and the chques were handed over at Kalpetta. I am satisfied, on an anxious consideration of all the relevant aspects and going by the dictum in Santhoshkumar (supra) as also on an assessment of the balance of convenience between the parties, it will only be proper to direct that the case be tried by the learned Chief Judicial Magistrate, Kalpetta, within the jurisdiction of which Court the alleged transaction is revealed to have taken place. I am satisfied that such a direction shall eminently advance the interests of justice also. 4. In the result: a) This transfer petitioner is allowed. b) S.T. 5 of 2007 pending before the J.F.M.C.-III, Kochi is transferred to the Court of Chief Judicial Magistrate, Kalpetta. c) The learned J.F.M.C.-III. Kochi shall forthwith transmit the records to the Court of C.J.M., Kalpetta such that the files reach that T.P.(Crl).No. 82 of 2008 4 court well prior to 12.1.2009. d) The parties/their counsel shall appear before the C.J.M., Kalpetta to proceed with the trial on 12.1.2009. e) The learned C.J.M. Kalpetta shall dispose of the case as expeditiously as possible – at any rate within a period of 45 days from 12.1.2009. Compliance shall be reported to this Court. f) There shall be a further direction that the personal presence of the complainant need be insisted by the learned Magistrate only when such presence is essential for the progress of the case. On all other days, he shall be permitted to appear through his counsel. (R. BASANT) Judge tm