IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 Tr.P(Crl.).No. 100 of 2009() ---------------------------- CC.25/2009 of J.M.F.C.,KUNNAMKULAM .................... PETITIONER(S): --------------- OMANA THOMAS, AGED 60 YEARS, PARACKAL PUTHEN VEEDU, MANIKANTESWARAM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MUHAMMED HARIS.M.V, PORKULLIYIL VEEDU, PUNNAYOORKULAM AMSOM, CHAVAKKAD TALUK, THRISSUR DIST. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, PRAJISH MUHAMMED, ELAMBANAM KATTAYIL VEEDU, PUNNAYOORKULAM AMSOM, CHAVAKKAD TALUK, THRISSUR DIST. R1 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 22/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ T.P. (CRL.) NO. 100 OF 2009 ------------------------------------------ Dated 22nd October 2009 O R D E R Petitioner is the accused and second respondent the complainant in C.C.25/2009 on the file of Judicial First Class Magistrate, Kunnamkulam taken cognizance of the offence under Section 138 of Negotiable Instruments Act. Petition is filed to transfer that case to Thiruvananthapuram. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel appearing for the petitioner is that as per the complaint, no part of the transaction has taken place within the jurisdiction of Judicial First Class Magistrate, Kunnamkulam and petitioner is residing at Thiruvananthapuram and she is an old lady suffering from illness and in such circumstances, the case is to be transferred to Thiruvananthapuram. Reliance was placed on the decisions reported in Smt.Susheela B.S v. Maruthi Tr.P(Crl.)100/09 2 Ferto Chemicals Ltd. (2002 (4) Crime 250) and Neelam Kanwar v. Deninder Singh Kanwar (2000 (10) SCC 589). 4. Paragraph 2 of Annexure-1 complaint filed by second respondent shows that there is a specific allegation that cheque was handed over within the jurisdiction of Judicial First Class Magistrate, Kunnamkulam. In such circumstances, it cannot be said that learned Magistrate has no jurisdiction to try the case. Therefore, on that ground the case cannot be transferred. 5. Then the question is whether for the reason that petitioner is a lady or she is suffering from illness the case is to be transferred. Fact that petitioner is a lady or is suffering from illness by itself is not a sufficient ground to transfer, when personal presence of the petitioner is not necessary on all the posting dates at Kunnamkulam. Petitioner is entitled to file a petition under Section 205 of Code of Criminal Procedure to dispense with her presence and she need appear before the learned Magistrate only if Tr.P(Crl.)100/09 3 she is to be examined and only on the date of her examination. In such circumstances, petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.