R. Balasubramnian vs Sathasivam

A. Ramamurthi, J.—Petitioner/accused in C.C. No. 309 of ''1997 on the file of Judicial Magistrate No. III of Erode, has preferred the

miscellaneous petition aggrieved against the orders passed in Crl. M.P. No. 548 of 2000 on the file of Chief Judicial Magistrate, Erode dated

29.11.2000.

The case in brief is as follows:

The Respondent lodged a complaint against the Petitioner for an offence u/s 138 of Negotiable Instruments Act. After the closure of the

prosecution case, the Petitioner filed a petition to obtain the opinion of the Handwriting Expert in C.M.P. No. 4115 of 1998 before the trial Court

and the same was dismissed. Aggrieved against this, the Petitioner has preferred Crl.R.C. No. 157 of 1999 before this Court and the same is

pending.

Even though the revision is pending, the trial court has closed the defence side suo motu and posted the case for arguments. Under the

circumstances, the Petitioner moved the learned chief Judicial Magistrate, Erode, for transfer of the case to some other court. After hearing the

parties, the learned Chief Judicial Magistrate dismissed the application and aggrieved against this, the present revision is filed.

Heard the learned Counsel on both sides.

The point that arises for consideration is whether the order passed by the Court below is proper and correct?

Point:lt is not in dispute that the Respondent filed the complaint u/s 138 of Negotiable Instruments Act against the Petitioner and the evidence of

the prosecution was already over. The Petitioner filed the application to send the impugned document to the Hand Writing Expert for opinion and it

was dismissed by the trial Court. Aggrieved against this, the Petitioner has preferred Crl.R.C. No. 157 of 1999 before this Court and also

obtained interim stay for a particular period. Even during the pendency of the revision case, the trial court closed the side of the defence and

posted the case for arguments. Only then, the Petitioner has filed the transfer petition before the learned Chief Judicial Magistrate, Erode in

Crl.M.P. No. 548 of 2000 u/s 410 of the Code of Criminal Procedure. The learned Chief Judicial Magistrate dismissed the application.

Learned Counsel for the revision Petitioner mainly contended that when the Criminal revision case is pending before this Court, the stay was

also granted for a particular period. The trial court should wait for disposal of the revision case. When the trial Magistrate has closed the defence

side, the Petitioner apprehends that he would not get a fair trial and, as such, filed the application for transfer of the case. However, learned

Counsel for the Respondent opposed the application and contended that in the criminal case, the stay was granted only for a limited period and it

was not extended thereafter. More over, the Petitioner already filed some other application before the trial Court and although they were

dismissed, no revision was filed against the order. The complaint is of the year 1997 and the only intention of the Petitioner is to protract the

proceedings and the apprehension is without any basis and there is absolutely no reason to transfer the case to any other court.

Learned Counsel for the revision Petitioner mainly contended that in spite of the pendency of criminal Revision Case 157 of 1999, the trial

Court is insisting to dispose of the case. Admittedly, the stay was granted only for a short period and thereafter it was not extended. Learned

Counsel for the Respondent also stated that the Petitioner wanted extension of stay by the revision court, but the same was not granted. However

it may be, when the revision petition has been filed and interim stay has been granted for a particular period it is the duty of the trial court to wait

for a reasonable time or insist the Petitioner to get an order of stay from this Court. If that is not considered and if ultimately the trial court disposed

of the case in one way and the revision was allowed in favour of the accused, then it will not serve any purpose. Under the circumstance, it is the

duty of the trial court to give a reasonable time to enable the Petitioner to get extension of stay, failing which, it is open to the court to dispose of

the case according to law. Having regard to the facts and circumstances of the case although the grounds urged by the Petitioner may not be valid

one for transfer of the case, yet in the interest of justice, it is just and necessary to transfer the case to the file of some other court in the same place,

so that justice is not only be done, but appears to be done can be done in the case. Hence, the point is answered accordingly.

For the reasons stated above, Crl.M.P. No. 9337 of 2000 is allowed and C.C. No. 309 of 1997 is transferred from the file of Judicial

Magistrate-III, Erode to the file of Judicial Magistrate II, Erode and the learned Magistrate is directed to dispose of the case within a period of

two weeks after the disposal of Crl.R.C. No. 157 of 1999. It is also made clear that if and when fresh petitions are filed by the Petitioner, the

learned Magistrate is directed to hear the applications along with the main case and pass orders in all the case simultaneously. Consequently,

Crl.M.P.9338 of 2000 is closed as unnecessary.