IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(Crl.).No. 102 of 2008()
1. SOJAN JACOB
... Petitioner
Vs
1. SREERAM AGENCIES, N.PARAVOOR,
... Respondent
2. STATE OF KERALA
For Petitioner :SRI.GEORGE SEBASTIAN
For Respondent :SRI.S.SARAVANA BHAVAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/06/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Tr.P.(CRL.)NO.102 OF 2008
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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.
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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
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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
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the records. Petitioner shall not seek adjournment
for his examination.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.