IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr P(Crl) No. 41 of 2007()
1. P.KUMARA SWAMY, PADMAKUMAR BHAVAN,
... Petitioner
Vs
1. M.ALOYSIUS, TREESIUS HOME,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.B.S.SWATHY KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :21/03/2007
O R D E R
R.BASANT, J
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Tr.P(Crl).No.41 of 2007
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Dated this the 21st day of March, 2007
ORDER
The petitioner is the accused in a prosecution under Section 138
of the N.I Act. The respondent herein is the complainant. The case is
now pending before the learned Judicial Magistrate of the First Class-
VI, Thiruvananthapuram. The petitioner prayed before the learned
Sessions Judge that the case may be transferred to the court at
Neyyattinkara. That application was stoutly opposed by the
respondent. The learned Magistrate, in these circumstances, rejected
the prayer. Aggrieved by the said order, the petitioner has come
before this Court.
2. The learned counsel for the petitioner submits that both
parties are residing at Neyyattinkara going by the addresses shown in
the complaint and that, in these circumstances, a direction for
transfer would only advance the interests for both sides. The learned
Magistrate did not look into the question of convenience of both sides,
it is urged.
3. I find no merit in the prayer at all. Convenience cannot be
ascertained merely by looking at the place of the permanent address
shown in the complaint. It is evident that the respondent did not want
the case to be transferred. In these circumstances, the prayer is not
founded on mutual convenience acceptable to both parties.
Tr.P(Crl).No.41 of 2007 2
4. There is no contention that the Court at
Thiruvananthapuram is not the Court having territorial jurisdiction to
deal with the matter legally. The only grievance is that the petitioner,
an old person, will have to travel from Neyyattinkara to
Thiruvananthapuram to conduct his case. That by itself cannot
persuade the Court to order transfer. The interests of justice will be
best served if the petitioner seeks exemption from personal
appearance. I find no reason why such insistence on personal
appearance can and must be made by a court when the prosecution is
only under Section 138 of the N.I Act. I am, in these circumstances,
satisfied that the petitioner can certainly apply before the learned
Magistrate to seek exemption from personal appearance. His
personal appearance need not be insisted by the learned Magistrate
unless progress of the case demands such course.
5. This Transfer Petition is, in these circumstances,
dismissed, but with the above observations.
(R.BASANT, JUDGE)
rtr/-