Allahabad High Court
Vivek Kumar Jain vs State Of Up Thru. Prin. Secy. Home ... on 19 October, 2022
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 93 of 2022
Applicant :- Vivek Kumar Jain
Opposite Party :- State Of Up Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Kunwar Manish Rakesh,Sunil Kumar Sinha
Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Sunil Kumar Sinha, learned counsel for applicant as well as learned Additional Government Advocate for the State and perused the record.
The instant application has been filed by the applicant namely Vivek Kumar Jain with the following prayer:-
"to set-aside the order passed by learned District Judge Lucknow contained in Annexure No.1 and order that both cases, namely Vivek Kumar Jain vs. Sujeet Kumar Rastogi Case No. 7425/2014, P.S. Bazarkhala, Lucknow, pending in the Court of Additional Civil Judge (J/D) Court No.40, and complaint case no. 82730/2014 namely Sujeet Kumar Rastogi vs. Vivek Kumar Jain under Section 138 N.I. Act, P.S. Chowk, Lucknow, pending in the Court of Special Judicial Magistrate, Court No.10, Lucknow be tried by one and same court."
Learned counsel for the applicant while referring to the impugned order dated 14.09.2022 passed by the Sessions Judge, Lucknow, submits that the Sessions Judge, Lucknow has committed manifest illegality in rejecting the request of the applicant for the trial of both cases by one and same court and if both the cases are allowed to sail in different courts the same may result in contradictory Judgments which would not be in the interest of justice as well as in the interest of the instant applicant as he will be prejudiced in defending himself in the proceedings instituted under Section 138 of the Negotiable Instrument Act. Thus, the order of the Sessions Judge, Lucknow dated 14.09.2022 be set-aside and both the cases mentioned herein-before, be directed to be tried by one and same court.
Learned A.G.A. on the other hand submits that the cases referred to by learned counsel for the applicant are not cross cases and the same may be tried by the two different courts.
Having heard learned counsel for the parties and having perused the record, it would be evident that one of the two cases sought to be tried by the same court is pertaining to Section 138 of the Negotiable Instrument Act. A presumption has been provided under Section 139 of the Negotiable Instrument Act. Both cases are pending in different courts and could not be termed as cross cases. Therefore, no illegality or to say any irregularity is likely to emerge if both the cases are permitted to be decided by different courts.
It is also to be recalled that in the complaint case instituted by the petitioner, he appears to have carved out a defense which may be very well proved during the proceedings of Section 138 of the Negotiable Instrument Act when an opportunity shall be provided to the instant applicant for leading defence evidence.
Thus, for the reasons mentioned herein-before, I do not find any illegality or to say any irregularity in the order dated 14.09.2022 passed by the Sessions Judge, Lucknow and for the reasons aforesaid, the instant application appears to be devoid of merits and is dismissed as such.
Order Date :- 19.10.2022
Praveen
