Geethadevi M.K v. Neelakandan Namboothiri V.M.C

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939** **Tr.P(Crl.).No. 113 of 2017 ()** **-----------------------------TO TRANSFER ST 45/2017 of JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR TO JUDICIAL FIRST CLASS MAGISTRATE'S COURT (NEGOTIABLE INSTRUMENTS ACT CASES) ERNAKULAM** **-------------** **PETITIONER :** **------------------** **GEETHADEVI.M.K, D/O. KERALA VARMA,AGED 56 YEARS, RESIDING AT MUTTATHIPARAMBIL KOVILAKAM, EAST GATE, ARANATTUKARA,VAIKOM-686141, KOTTAYAM DISTRICT.** **BY ADVS.SRI.T.MADHU SMT.C.R.SARADAMANI** **RESPONDENT :** **--------------------** **NEELAKANDAN NAMBOOTHIRI V.M.C, RESIDING AT VELLAYIL MANA,THAVANOOR POST, MALAPPURAM-679573. MALAPPURAM DISTRICT.** **BY ADV. SRI.J.R.PREM NAVAZ BY ADV. SRI.P.T.SHEEJISH** **THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** **Tr.P(Crl.).No. 113 of 2017 () ------------------------------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** **---------------------------------------** **ANNEXURE A1: COPY OF THE COMPLAINT DT 27/1/2017 INST NO.45/2017 ONT HE FILES OF THE LEARNED JUDICIAL FIRST CLASS MAGISTRATE'S COURT, TIRUR.** **ANNEXURE A2: COPY OF THE REPLY NOTICE DT 12/1/2017 ISSUED BY THE PETITIONER TO THE RESPONDENT.** ## **RESPONDENT'S ANNEXURES :** **NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **ALEXANDER THOMAS, J.** **.................................................................... Tr.P.(Crl.) No.113 of 2017 .................................................................... Dated this the 8[th] day of November, 2017.** ## **O R D E R** The prayer in this Transfer Petition filed under the enabling provisions contained under Section 407 of the Code of Criminal Procedure, 1973 is for a direction to withdraw ST No.45/2017 on the file of Judicial First Class Magistrate's Court, Tirur and to transfer the same to the Judicial First Class Magistrate's Court (Negotiable Instruments Act cases), Ernakulam. 2. It is stated that the petitioner is an accused for offence punishable under Section 138 of the Negotiable Instruments Act, in ST No.45/2017 on the file of Judicial First Class Magistrate's Court, Tirur instituted on the basis of complaint filed by the respondent herein. The two dishonoured cheques involved in this case are for Rs.3,00,000/each, thus totaling to Rs. 6,00,000/-. The petitioner is a widow and is residing at Vaikom in Kottayam District. The complaint proceedings is initiated before the Judicial First Class Magistrate's Court, Tirur, Malappuram District. Petitioner submits that it is extremely difficult for her to travel more than 170 Kilometres from her residence at Vaikom, Kottayam District, to the Judicial First Class Magistrate's Court, Tirur, Malappuram District. She has to undertake travel on the previous day Tr.P(Crl.)113/17 -2- and stay in some hotel at Tirur to attend the court proceedings on the next day, and that the petitioner being a woman and widow, it is extremely difficult for her to attend the court proceedings at Tirur. 3. This petition was admitted on 11.10.2017, on which day this Court has ordered to issue notice to the respondent. Respondent has been served and entered appearance through Sri. J.R. Prem Navas, learned counsel. 4. Heard Shri. T. Madhu, learned counsel appearing for the petitioner and Shri. J.R. Prem Navas, learned counsel appearing for the respondent (complainant). 5. Sri.J.R.Prem Navaz, learned counsel appearing for the respondent (complainant) has opposed the prayer for transfer. It is submitted that the complaint has been instituted before the proper court in accordance with the provisions contained in Sections 142(2) and 142A of the NI Act as amended with effect from 15.6.2015 and that as the complainant's collection bank is Federal Bank, Kuttippuram Branch, Malappuram District, the Judicial First Class Magistrate Court, Tirur, which is having jurisdiction over the said collection Bank area, is the court where the complaint is to be instituted. More over, it is pointed out that the respondent (complainant) is now aged above 67 years and Tr.P(Crl.)113/17 -3- that he might find it difficult to travel all the way from Tirur to Ernakulam etc. 6. In view of the above said aspects, the petitioner has made out a strong case for allowing the prayer for transfer of the case from Tirur to Ernakulam. The petitioner being a woman and widow, finds it extremely difficult to undertake constant journeys, which are required in connection with the appearance before the Judicial First Class Magistrate's Court at Tirur. She has to commence the journey on the previous day and stay some hotel at Tirur as she has no relatives at Tirur. Therefore, comparative hardships to be suffered by the petitioner are far greater than the inconveniences that may have to be faced by the respondent (complainant). Therefore, the prayer for transfer is to be allowed. 7. However, the difficulties and hardships that might be faced by the respondent (complainant) on account of transfer of the case from Tirur to Ernakulam should also be reckoned and resolved by this Court. The respondent (complainant) is now aged above 67 years and the plea made on his behalf that he might have difficulty to travel frequently from his residential place at Kuttippuram to Ernakulam etc., should also be seriously taken into account, so that justice is done to both sides. Tr.P(Crl.)113/17 -4- 8. The prayer in this petition is for transfer of the case from Judicial First Class Magistrate's Court at Tirur to the Judicial First Class Magistrate's Court (Negotiable Instruments Act cases) at Ernakulam. It is learned that the work load in the Magistrate's Court notified for handling only Negotiable Instrument Act Cases at Ernakulam is quite heavy. Registry has appraised that the Judicial First Class Magistrate's Court-III at Ernakulam is having comparatively lesser work load. 9. Having regard to the totality of the facts and circumstances, in the interest of justice it is ordered that the complaint in ST No. 45/2017 now pending before the Judicial First Class Magistrate's Court, Tirur will stand withdrawn and transferred to the Judicial First Class Magistrate's Court-III, Ernakulam. 10. Registry will forward a certified copy of this order to the Judicial First Class Magistrate's Court, Tirur, at the cost of the petitioner. Upon receiving certified copy of the above said order, the learned Magistrate at Tirur shall forthwith transfer and transmit the entire case papers in relation to S.T.No.45/2017 to the Judicial First Class Magistrate's Court-III, Ernakulam. The latter court at Ernakulam, upon receipt of the case papers shall issue summons to the accused and will also issue notice to the complainant, and thereafter, will proceed Tr.P(Crl.)113/17 -5- with the complaint in accordance with law. 11. Having regard to the fact that the petitioner is a widow, it is also ordered in the interest of the justice that after the petitioner enters appearance before the Magistrate's Court, Ernakulam and secures bail, she will be at liberty to file appropriate application seeking exemption from personal appearance under Section 205 of Cr.P.C. Upon receipt of such an application the learned Magistrate Court shall consider that application favourably and in the light of the legal principles laid down by this Court in **Reddy v. Excel Glasses Ltd.,** reported in 2010 KHC 548 = 2010(3) KLT SN 11 (C.No.14), **Bhaskar Industries Ltd. v. Bhiwani Denim & Apparel Ltd.,** reported in AIR 2001 SC 3625, **Ajith Kr. Chakravorthy & Ors v. Serampore Municipality,** reported in 1989 Crl.L.J.523 etc. 12. Taking into consideration the difficulties that may have to be faced by the respondent (complainant), who is aged 67 years, for travel all the way from Kuttippuram to Ernakulam, it is ordered in the interest of justice that the Magistrate at Ernakulam need not insist for appearance of the respondent (complainant) on all the posting dates, provided he is represented through counsel or another counsel duly authorised by the counsel on record so as to represent the respondent Tr.P(Crl.)113/17 -6- before the court, on the respective posting dates. However, if the complainant is intending to give evidence as prosecution witness, then his proof affidavit may be accepted through his counsel and the same may be placed on record, but with the condition that he should personally be present before the court for subjecting himself for cross examination. Except for this, on all the other posting dates, the complainant's presence need not be insisted upon by the learned Magistrate and the complainant's absence could be condoned subject to the above said conditions. Having regard to the facts and circumstances of this case, it is also ordered in the interest of justice that the learned Magistrate at Ernakulam shall take all possible endeavours to ensure that the trial is completed without much delay, preferably within a period of 5-6 months from the date of appearance of the parties. With these observations and directions this Transfer Petition (Criminal) will stand finally disposed of. ## **(ALEXANDER THOMAS, JUDGE)** ww/jg