IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 Tr.P(Crl.).No. 51 of 2008() --------------------------- CC.58/2008 of C.J.M.,MANJERI & CC.59/2008 OF C.J.M.,MANJERI .................... PETITIONER: ACCUSED; ------------------------------------- ADAM VEETTIL MUHAMMAD SALEEM MADANI, MADANI MANZIL, KUTANGARUDKA, KUMBALA, KOIPADY VILLAGE, KASARAGOD TALUK. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: COMPLAINANT: ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. KAMAL SHEREEF, PERINKDDAKKATIL HOUSE, MONGOM VILLAGE, ERNAD TALUK, MALAPPURAM. BY PUBLIC PROSECUTOR SRI. AMJAD ALI THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 06/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Tr.P (Cri) No. 51 of 2008 ------------------------------------------------- Dated this the 6th day of August, 2008 ORDER The petitioner is the accused in two prosecutions – both under Sec.138 of the Negotiable Instruments Act and both initiated against him by the 2nd respondent herein. Those proceedings are pending before the learned Chief Judicial Magistrate, Manjeri. The petitioner prays in this one petition that both the cases may be transferred to any other court outside the Sessions Division of Manjeri. 2. What is the reason? According to the petitioner, he is mortally afraid to proceed to the court of the C.J.M., Manjeri. He apprehends physical harm if he were to proceed to that court. The learned counsel for the petitioner submits that, in fact, the petitioner had wanted to surrender before the C.J.M. and had filed applications to advance the hearing of the case. Tr.P (Cri) No. 51 of 2008 -: 2 :- On account of threat and intimidation, he could not appear before the C.J.M. and hence the petitions for advancing the cases filed by him were dismissed by the learned Magistrate. The learned counsel for the petitioner submits that the petitioner is the complainant in a criminal complaint filed before the learned Judicial Magistrate of the First Class, Kasaragod, against the 2nd respondent herein and some others. In that case, complaint has been forwarded to the police and a crime has been registered by the Kumbla police, it is submitted. In these circumstances, in view of the bitter animosity and disputes, there may be a direction to transfer the case to some other court outside the Sessions Division of Manjeri, it is prayed. 3. Except bare and bald assertions of the petitioner, there is nothing tangible for this Court to come to a conclusion that the apprehension expressed by the petitioner is real, reasonable or existent. I am unable to accept that any valid reason has been shown to justify the prayer for transfer outside the Sessions Division. It is not even asserted that any complaint has been filed alleging any threat or intimidation against the petitioner by the 2nd respondent or persons acting under him. I am, in these Tr.P (Cri) No. 51 of 2008 -: 3 :- circumstances, satisfied that sufficient materials have not been shown to exist to justify and support the prayer for transfer. 4. The learned counsel for the petitioner submits that warrants of arrest have been issued by the learned Magistrate against the petitioner and such coercive processes are chasing the petitioner now. The petitioner can surrender before the learned Magistrate and seek regular bail. Needless to say, if the petitioner surrenders before the learned Magistrate and seeks bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously – on the date of surrender itself. 5. The petitioner then submits that the petitioner may be directed to apply for exemption from personal appearance in these two prosecutions under Sec.138 of the N.I. Act. Permission may be granted to so apply and appropriate directions may be issued, it is prayed. The petitioner does not require the permission of this Court to apply for exemption. He can apply for exemption and, in the facts and circumstances of this case, where the prosecutions are only for the offence under Tr.P (Cri) No. 51 of 2008 -: 4 :- Sec.138 of the N.I. Act, I find no reason why the petitioner's application should not be considered on merits, in accordance with law, expeditiously and favourably by the learned Magistrate. 6. With the above observations this Crl.M.C. is dismissed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Tr.P (Cri) No. 51 of 2008 -: 5 :-