Usha P. v. Somasekharan Nair and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940** **AGAINST THE ORDER/JUDGMENT IN ST 1261/2017 of J.M.F.C.,PAYYANNUR** **PETITIONER(S)/ACCUSED** **USHA P., AGED 45 YEARS, W/O. SETHUMADHAVAN, 'SWATHI', 18/450, MUDAPPALLUR, VANDAZHY GRAMA PANCHAYAT, MUDAPPALLUR P.O., ALATHUR, PALAKKAD.** **BY ADV.SRI.V.A.JOHNSON (VARIKKAPPALLIL)** **RESPONDENT(S)/RESPONDENTS AND STATE :** **1. SOMASEKHARAN NAIR, AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, VAZHAKKATTUKUNNU VEETTIL, M.M BAZAR, VELLORA P.O., THALIPPARAMBU, KANNUR-670141.** **2. STATE OF KERALA,** - **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **R1 BY ADV. SRI.O.V.MANIPRASAD** - **BY PUBLIC PROSECUTOR SRI.E.C. BINEESH** **THIS TRANSFER PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 01-08-2018 ALONG WITH TRANSFER PETITIONER (CRL) NOS. 82,83 AND 84, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Tr.P(Crl.).No. 81 of 2018** ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** **ANNEXURE A: TRUE COPY OF THE REPRESENTATION DATED 13-122017** **ANNEXURE B: TRUE COPY OF THE CERTIFICATE FOR THE PERSONS WITH DISABILITIES ISSUED FROM THE DEPARTMENT OF HEALTH SERVICES** **ANNEXURE C: TRUE COPY OF O.S. NO. 300 OF 2017 ON THE FILE OF THE MUNSIFF AT ALATHUR** ## /TRUE COPY/ P.S. TO JUDGE ## **B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Tr.P. (Crl.) 81, 82, 83 and 84 of 2018** ------------------------------------------------- Dated this the 1[st] day of August, 2018 ## **O R D E R** The petitioner is one and the same in all the above said Transfer Petitions. 2. The petitioner in Tr.P. (Crl) No. 81 of 2018 is the accused in S.T. No. 1261 of 2017 and the petitioner in Tr.P. (Crl.) 84 of 2018 is the accused in S..T. No. 832 of 2017 on the files of the Court of the Judicial Magistrate of First Class, Payyannur. The petitioner in Tr.P.(Crl) 83 of 2018 is the accused in C.C. No. 785 of 2017 and the petitioner in Tr.P.(Crl.) 82/2018 is the accused in C.C. No. 784 of 2017 on the files of the court of the Judicial Magistrate of First Class-II Hosudrg. -2- Tr.P. (Crl.) 81, 82, 83 and 84 of 2018 3. The petitioner has filed the above Transfer Petitions praying for transferring the above said cases to the Court of the Judicial Magistrate of the First Class-II, Alathur. 4. Heard. 5. The learned counsel for the petitioner has submitted that all the above said cases were filed by the party respondents misutilising the cheques obtained from one Murali Mohanan with whom the petitioner had business transaction. It has been further submitted by the learned counsel for the petitioner that the party -3- Tr.P. (Crl.) 81, 82, 83 and 84 of 2018 respondents in the above said cases are very close relatives and they who filed the above cases in different places only for the purpose of harassing the petitioner and coercing her to settle the matter. It has been further submitted by the learned counsel for the petitioner that the son of the petitioner is having 75% of mental and physical disabilities and in the said circumstances, the presence of the petitioner is necessary to look after her son. The learned counsel has further submitted that the civil cases filed by the party respondents pending before the Munsiff 's Court, Alathur. 6. The learned counsel for the party respondents has submitted that the provisions of (a),(b), -4- Tr.P. (Crl.) 81, 82, 83 and 84 of 2018 and (c) of sub Section (1) of Section 407 of the Code are not applicable to the case in hand and in the said circumstances, the petitioner is not entitled to get the above said cases transferred as sought for. The learned counsel for the party respondents has further submitted that Section 407 Cr.P.C. gives power to this court to transfer the case to the general convenience of the parties or witnesses and hence, the convenience of the accused alone is not a matter to be considered while invoking the provisions of Section 407 Cr.P.C. The learned counsel relied on the decision of the Division Bench of this Court in Sreejith v. State of Kerala [2016 (2) KLT 682], to buttress his submission. In Sreejith (supra), there were 27 criminal cases against the petitioner therein, which were -5- Tr.P. (Crl.) 81, 82, 83 and 84 of 2018 registered in five northern districts viz. Kasaragod, Kannur, Wayanad, Kozhikode and Malappuram. The offences involved therein were the offences under Section 379 read with Section 34 IPC. Almost all the witnesses including the mahazar witnesses in the said cases belonged to the respective places. In the said circumstances, the court held that the transfer of the cases to some other court so as to suit the convenience of the accused, disregarding the hardships to the witnesses, is a matter of concern and it cannot be in the best interest of proper administration of justice. The Division Bench in Sreejith (supra) did not make any proposition of law that the convenience of the accused should not be considered at all, in the matter of transferring the case from one court to another. -6- Tr.P. (Crl.) 81, 82, 83 and 84 of 2018 8. It is admitted that the first respondent in Tr.P.Crl. 81/2018 is the father of the first respondent in Tr. P. (Crl) 84 of 2018. The first respondent in Tr.P. (Crl).83/2018 is the daughter and the first respondent in Tr.P.Crl. 82/2018 is the son-in-law of the first respondent in Tr.P.C. 81 of 2018. The contention of the petitioner is that the above said party respondents, who are close relatives as stated above, obtained blank signed cheques from one Murali Mohanan, who was the partner of the petitioner and thereafter, they misutilized the said cheques and filed different cases against the petitioner in different courts. It appears from the contentions of the petitioner that the petitioner is having common defence in all the -7- Tr.P. (Crl.) 81, 82, 83 and 84 of 2018 above cases. Therefore, if the trial of the above cases is conducted in different courts, the petitioner will not able to file any application for joint trial of the case, is the contention of the petitioner. 9. The petitioner is a lady having a son having 75% physical and mental disability as is evident from the document produced by the petitioner along with these transfer petitions. Since the petitioner is to look after her disabled son, the petitioner finds it very difficult to travel all the way from Palakkad to Kannur and Payyannur to contest the above cases. Civil cases are also pending before the Minsiff's Court, Alathur. In view of the above reason, it is just and proper to transfer the above cases to -8- Tr.P. (Crl.) 81, 82, 83 and 84 of 2018 the Court at Alathur on humanitarian ground, which is, no doubt, for the convenience of the petitioner. In view of the above reasons, there can be no doubt that transferring the above cases to one court will be necessary to secure the ends of justice. Since the party respondents are very close relatives who are father, children and son-in-law and since the petitioner has a common defence against the party respondents, it is necessary to try the above cases before the same court to have a fair and impartial trial. So also, if the above cases are not tried by the same court, the petitioner may not be able to file any application for joint trial of the said cases. In view of the above reasons, it can not be said that the provisions of (a) and (b) of sub Section (1) of Section 407 are not attracted in this case -9- Tr.P. (Crl.) 81, 82, 83 and 84 of 2018 and in the said circumstances, the argument in this regard advanced by the party respondents cannot be accepted. The upshot of the above discussion is that the petitioner in the above cases has made out a case for transferring the case to the court at Alathur. In the result, these Transfer Petitions stand allowed transferring S.T. Nos. 1261 of 2017 and 832 of 2017 on the files of the Court of the Judicial Magistrate of First Class, Payyannur and C.C. Nos. 784 of 2017 and 785 of 2017 on the files of the Court of the Judicial Magistrate of First Class - II Hosdurg to the Court of the Judicial Magistrate of First Class -II, Alathur for trial and disposal in accordance with law. -10- Tr.P. (Crl.) 81, 82, 83 and 84 of 2018 The parties are directed to appear before the transferee court on 1-10-2018, without further notice. **B. SUDHEENDRA KUMAR, JUDGE** . ani/