Kattassery Manual Vincent vs State Of Kerala

A. Badharudeen, J

This is a petition filed under Section 407(2) read with Section 482 of the Code of Criminal Procedure, seeking transfer of C.C.No.1152/2021, pending before the Judicial First Class Magistrate Court-III, Thiruvananthapuram, to Judicial First Class Magistrate Court-I, Ernakulam.

Heard the learned counsel for the petitioner.

It is submitted by the learned counsel for the petitioner that the petitioner, who is the sole accused in the above case, is a senior citizen, aged 64 years and he has ailments. Therefore, he could not conduct the case before the Judicial First Class Magistrate Court, Thiruvananthapuram and therefore, the case is to be transferred, as sought for.

In fact, C.C.No.1152/2021 is the outcome of prosecution launched by the complainant, who is the second respondent herein, alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘the NI Act’ hereinafter), involving dishonour of cheque for Rs.9,80,000/-(Rupees Nine Lakh Eighty Thousand only). Now, the contention raised by the petitioner is that the entire amount was paid and the prosecution is unwanted. In fact, that is a matter to be decided by the trial court during trial.

Mere ailment or convenience of an accused in a prosecution under Section 138 of the NI Act, is not a ground to transfer. Therefore, there is no merit in this petition and the same is accordingly dismissed.

It is made clear that, if the petitioner has any difficulty in appearing before the trial court on all days, he can seek exemption, by filing separate petitions through his counsel, if he is on bail and he has no objection in conducting trial in his absence. If such applications are filed, the trial court shall consider the same on merits.

However, it is made clear that the trial court can insist his presence on every occasion for expediting the trial.