IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 Tr.P(Crl.).No. 102 of 2008(F) --------------------------------------- ST.NO.4195/2005 OF J.M.F.C. - II, N.PARAVUR. .................... PETITIONER: ------------------- SOJAN JACOB S/O. K.C.CHACKO, KOORKAKALAYIL, ERUMELI, KOTTAYAM DISTRICT. BY ADV. MR.GEORGE SEBASTIAN. RESPONDENTS: ------------------------ 1. SREERAM AGENCIES, N.PARAVOOR, REPRESENTED BY PROPRIETOR, T.A.SARASWATHY, D/O. E.G.PARAMESWARA PANIKKAR, MANIDEEPAM HOUSE, K.K.STREET, N.PARAVOOR, ERNAKULAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADVS. MR.S.SARAVANA BHAVAN, MR.V.M.KRISHNAKUMAR. R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 09/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Tr.P.(CRL.)NO.102 OF 2008 ------------------------------------------ Dated 9th June 2009 O R D E R Petitioner is the accused and first respondent the complainant in S.T.4195/2005 on the file of Judicial First Class Magistrate-II, North Paravoor. Magistrate has taken cognizance for the offence under Section 138 of Negotiable Instruments Act. First respondent was examined as early as 22/4/2008 and case was posted for questioning under Section 313 of Code of Criminal Procedure. The petitioner did not appear and a non bailable warrant was issued. It is pending. This petition is filed for transfer of the case from Judicial First Class Magistrate, North Paravoor to Judicial First Class Magistrate, Kanjirappally contending that petitioner is laid up due to cancer and he is not in a position to travel and appear before the Magistrate at Paravoor and give evidence. Petitioner has also contended that court at North Paravoor has no jurisdiction and therefore it is to be transferred. TPCR 102/08 2 2. Learned counsel appearing for petitioner and first respondent were heard. 3. Learned counsel appearing for petitioner submitted that medical records produced establish that petitioner is suffering from bone cancer and is being administered Chemotherapy and it is not possible for him to travel to North Paravoor and give evidence. Learned counsel submitted that the case be transferred to Kanjirappally and petitioner is prepared to co- operate for early disposal and there can be a direction to dispose the same within a time frame. 4. Learned counsel appearing for first respondent opposed the application contending that petitioner absconded when the case was posted for questioning and in such circumstances, he is not entitled to get a transfer. Learned counsel also submitted that if the case is to be transferred, first respondent, a lady has to travel to Kanjirapally and engage a counsel and appear before the court and it would be a punishment for her and therefore the case may not be transferred. 5. Considering the records establishing the illness of the petitioner, it is in the interest TPCR 102/08 3 of justice to transfer the case to Judicial First Class Magistrate, Kanjirappally. Apprehension of the first respondent/complainant that she had to undertake journey to Kanjirappally which would cause difficulty to her, could be removed by making it clear that she need not be present before the court and she can represent through her counsel. So also the apprehension of the further protraction of the case could be avoided by directing the Magistrate to dispose the case within a time frame. 6. In such circumstances, petition is allowed. S.T.4195/2005 on the file of Judicial First Class Magistrate-II, North Paravoor is transferred to Judicial First Class Magistrate-I, Kanjirappally for trial, making it clear that the Magistrate has continue the proceedings from the stage of questioning the accused on the evidence already recorded under Section 313 of Code of Criminal Procedure. It is also made clear that the Magistrate to give exemption to first respondent/complainant from personal appearance as her evidence is already over and personal appearance of the complainant is not at all necessary. Magistrate to dispose the case within two months from the date of receipt of TPCR 102/08 4 the records. Petitioner shall not seek adjournment for his examination. M.SASIDHARAN NAMBIAR, JUDGE. uj.