IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 Tr.P(Crl.).No. 87 of 2008() --------------------------- CC.66/2007 of J.M.F.C KALPETTA .................... PETITIONER(S): APPELLANT:ACCUSED: ------------------------------------------------------------ A.P.HAREESH, DISTRICT SAINIK WELFARE OFFICER, WAYANADU. BY ADV. SRI.NIDHI BALACHANDRAN SRI.ANIL R.NATH RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SHERIL.K., AGED 25 YEARS, S/O. MOOSA, KADALIKUNNIL HOUSE, P.O.PARIYARAM, MUTTIL NORTH VILLAGE, VYTHIRI TALUK, WAYNAD DISTRICT. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 12/11/2008 ALONG WITH THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R.BASANT, J ------------------------------------ Tr.P.(Crl). Nos. 87 and 88 of 2008 ------------------------------------- Dated this the 12th day of November, 2008 ORDER These transfer petitions are filed by the common petitioner, who faces indictment in a prosecution for the offences punishable under Section 138 of the Negotiable Instruments Act initiated by 2 different complainants. One case has now reached the stage of arguments. The other stands posted for appearance. According to the petitioner, he is a person suffering from permanent disability and is a resident of Kasargod. The case is pending before the Judicial Magistrate of the First Class, Kalpetta. The prayer is to direct that the case be transferred to any place where there is direct access by train. There is no such direct access to Kalpetta and in these circumstances, the petitioner suffers great prejudice and hardship by the continuance of the proceedings at Kalpetta. 2. I am not persuaded to agree that any direction for transfer deserves to be issued. Personal presence of the petitioner is not invariable in a prosecution under Section 138 of the Negotiable Instruments Act. If the petitioner has valid reasons to advance, he can advance them before the learned Magistrate and claim exemption from personal appearance Tr.P.(Crl). Nos. 87 and 88 of 2008 2 under Section 205 Cr.P.C. It is submitted that one of the cases has already reached the stage of arguments. I am at a loss to understand why the petitioner must appear personally in that case. So far as the other case is concerned also, the petitioner can claim the benefit of the decision in Jain Babu v. Joseph [2008 (4) KLT 16]. 3. These Transfer Petitions are, in these circumstances, dismissed, but it is specifically observed that the petitioner shall be at liberty to appear through counsel before the learned Magistrate and pray for exemption from personal appearance. The learned Magistrate must consider such request and pass appropriate orders on merits. 4. In the peculiar facts and circumstances of this case there shall be a direction that the warrant of arrest issued against the petitioner in these 2 cases, ie. C.C.32 of 2008 and C.C.No.66 of 2007 shall not be executed till 24.11.2008. On or before that the petitioner can appear before the learned Magistrate through counsel and claim exemption from his personal appearance. 5. Hand over a copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) rtr/-