IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Crl.Rev.Pet.No. 2874 of 2008() ------------------------------ (AGAINST THE ORDER DATED 28/05/2008 IN CRL.M.P.NO.1474/2008 of SESSIONS COURT, PALAKKAD) .................... REVN. PETITIONER(S)/ 2ND RESPONDENT/COMPLAINANT ----------------------------------- RASHEED, AGED 26, S/O. VAPUKUTTY, MULLAKKAT THODIL HOUSE, VAROD AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S):/PETITIONER & 1ST RESPONDENT / ACCUSED --------------- 1. M.P. RAMADAS, S/O. THAMBI, AGED 38, MANGALAM PARAMBIL VEEDU, PARUTHUR, PALLIPURAM, PATTAMBI. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SMT.T.D.RAJALAKSHMI FOR R1 SRI.R.SREEHARI FOR R1 SHRI.C.M.NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.REV.PETITION NO.2874/2008 ORDER ON CRL.M.A.NO.8741/2008 IN CRL.REV.PETITION NO.2874/2008 DISMISSED. 25/09/2008 SD/- (M.SASIDHARAN NAMBIAR, JUDGE) //TRUE COPY// PA TO JUDGE. jg M.SASIDHARAN NAMBIAR, J. ------------------------- Crl. Rev. Petition No.2874 of 2008 --------------------------------- Dated, this the 25th day of September, 2008 O R D E R Petitioner is the complainant in S.T.No.2750 of 2005 on the file of Judicial First Class Magistrate Court, Ottappalam and first respondent is the accused. The complaint was filed alleging that first respondent committed the offence under Section 138 of Negotiable Instruments Act. After his appearance before the learned Magistrate, first respondent filed Crl.M.P.No.1474 of 2008 before the Sessions Court, Palakkad under Section 408 of Code of Criminal Procedure to transfer the case from Judicial First Class Magistrate Court, Ottappalam to Judicial First Class Magistrate Court, Pattambi or any other court of competent jurisdiction. The allegation raised by first respondent before learned Sessions Judge was that complaint was falsely filed by the petitioner in collusion with one Mohanan, and as the said Mohanan and his men are threatening petitioner, he had filed a complaint before Deputy Superintendent of Police, Shornur seeking protection and if petitioner is to appear before Magistrate Court, Ottappalam, he Crl.Rev.Petition No.2874/2008 -2- will be attacked by petitioner and the said Mohanan and therefore, the case is to be transferred to some other Court. Petitioner herein filed an objection resisting the transfer sought for. The learned Sessions Judge as per order dated 28/05/2008 allowed the application and transferred the case to Judicial First Class Magistrate Court II, Palakkad. This revision petition is filed under Sections 397 and 401 of Code of Criminal Procedure challenging the order of transfer. 2. Learned counsel appearing for the petitioner and first respondent are heard. 3. The argument of the learned counsel appearing for the petitioner is that there is no valid ground to order transfer of the case from Ottappalam to Palakkad, and though first respondent had filed a petition before Deputy Superintendent of Police, Shornur for police protection, that petition was closed with a finding that there was no threat, and there is no valid reason for the transfer, and attempt of first respondent is only to protract the case. Relying on the decisions of the Apex Court in Ranjit Singh and Another Vs. Popat Rambhaji Sonawane and Crl.Rev.Petition No.2874/2008 -3- Others (AIR 1983 Supreme Court 292) and Leelawati and another Vs. Ramesh Chand and others (AIR 2004 Supreme Court 1488), it was argued that even if there is any threat as alleged, remedy is not to file petition for seeking order of transfer but to give protection to first respondent, and as there is no basis for the allegation of threat, the order is to be quashed. 4. The learned counsel appearing for the first respondent argued that if petitioner appeared before Magistrate Court, Ottappalam, he would be manhandled by petitioner and his men and as there is threat he cannot get a fair trial before Magistrate Court, Ottappalam and therefore, learned Sessions Judge rightly ordered transfer, and there is no reason to interfere with the order. It was also argued that, if at all, the order is to be interfered, necessary protection is to be afforded to first respondent. 5. Sub Section (1) of Section 408 of Code of Criminal Procedure enables the Magistrate to order transfer of a case pending before one criminal court to another criminal court in his sessions division, whenever it is made to appear that an order of Crl.Rev.Petition No.2874/2008 -4- transfer is expedient for the ends of justice. The learned Sessions Judge ordered transfer for the reason that allegations raised by first respondent in the application were not denied in an affidavit of petitioner and therefore, the allegations are to be taken as correct. It is stated in Annexure II objection filed by petitioner before the Sessions Court that there was no threat by petitioner or his men and contrary allegations are raised only for getting an order of transfer. True, it was not an affidavit, but an objection signed by the petitioner. When petitioner was not called upon to file an affidavit, learned Sessions Judge was not justified in holding that allegations raised in the petition filed by first respondent is correct, when in fact, the allegations were denied in the written objection. As pointed out by the learned counsel appearing for the petitioner, it was not disclosed as to what happened to the complaint filed by first respondent before Deputy Superintendent of Police for protection. It is to be borne in mind that in a private complaint filed under Section 138 of Negotiable Instruments Act, presence of petitioner is not necessary on all occasions and presence need be insisted only for Crl.Rev.Petition No.2874/2008 -5- the purpose of questioning under Section 313 of Code of Criminal Procedure or for the purpose of recording evidence. In such circumstances, there is no justification to order transfer as done by the learned Sessions Judge. The petitioner is at liberty to apply to learned Magistrate for protection on the dates on which he has to appear before that Court. Learned Magistrate need not insist for his presence on all occasions. 6. The revision petition is allowed. The order of transfer passed by learned Single Judge is set aside. Judicial First Class Magistrate, Ottappalam is directed to dispose the complaint as expeditiously as possible. (M.SASIDHARAN NAMBIAR, JUDGE) jg