Bombay High Court
Subhash vs Dinesh on 29 October, 2012
Bench: Shrihari P. Davare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPLICATION NO. 4114 OF 2012
Subhash s/o Girdharlal Nawandar,
age 64 years, occ. Business,
r/o Deepjyoti Nagar,
in front of Shantiniketan Kendra,
Near MIDC, Latur,
Latur ...Applicant
[Original Accused]
VERSUS
Dinesh s/o Subhash Nawandar,
age 34 years, occ. Business,
r/o Flat No. 6, Matoshri Apartment,
Near Medos uptown, Shahanoorwadi,
Aurangabad, Dist. Aurangabad ...Respondent
[Original Complainant]
.....
Shri Sachin S.Deshmukh, advocate for applicant
Shri D.V.Tele, A.P.P. for respondent
.....
CORAM : SHRIHARI P.DAVARE, J.
DATED : 29th October, 2012
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ORAL JUDGMENT : -
1] Heard respective learned counsel for the parties.
2] Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties taken up for final
hearing at the admission stage itself.
3] This is an application preferred by the applicant
(original accused) under Section 407 of the Code of Criminal
Procedure requesting that S.C.C. No. 1487 of 2012, pending
th
before the learned 7 Judicial Magistrate, First Class,
Aurangabad, be transferred to the court of competent
jurisdiction at Latur.
4] The applicant herein is the father of the respondent.
It is the contention of the applicant that R.C.S. No. 61 of 2008
was filed by the elder son of the present applicant for partition
and separate possession before the Civil Judge, Junior Division,
Chakur, Distict Latur. Accordingly, the said suit was
compromised inter se between the parties, to which present
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applicant and the respondent were parties. A copy of R.C.S.
No. 61 of 2008 and the copy of the compromise purshis as well
as decree therein are annexed with the application at Exh. 'A'
collectively. According to the said compromise purshis, the
present applicant being Karta of the family was to pay amount of
Rs.25,00,000/- to the present respondent, and accordingly, a
cheque no. 371619, dated 12.12.2011 drawn on H.D.F.C. Bank,
Latur was issued in favour of the respondent. However,
according to the applicant, condition no. (E) of the compromise
purshis indicates that the said amount was to be paid on sale of
the suit land. The said compromise purshis bears signatures of
all the parties and all are residents of Latur, except present
respondent. However, it is the contention of the applicant that
the respondent without waiting for the sale proceeds created
charge on the land and as a result the applicant could not sale
out the said suit land for want of clear title and the respondent
allegedly committed breach of the terms of the said
compromise.
5] It is the contention of the applicant that the
respondent herein has initiated proceedings under Section 138
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of the Negotiable Instruments Act against the applicant herein
bearing S.C.C. No. 1487 of 2012 at Aurangabad on the basis of
the afore said cheque and process has been issued therein and
copy thereof is annexed at Exh. 'C'.
6] According to the applicant, only process has been
issued in the said proceeding and further evidence is yet to be
started. Hence, it is submitted that it is expedient in the interest
of justice to transfer the S.C.C. No. 1487 of 2012 from
Aurangabad to Latur by invoking provisions of Section 407 of
the Code of Criminal Procedure. It is the contention of the
applicant that all the parties to R.C.S. No. 61 of 2008 are
residing at Latur itself except the respondent herein.
7] It is the contention of the applicant that he has
preferred application below Exh.33 under Section 191 of the
th
Code of Criminal Procedure before the learned 7 Judicial
Magistrate, First Class, Aurangabad to transfer the said case to
the competent court at Latur. However, the said application
came to be rejected on 24.8.2012 and copy thereof is annexed
at Exh.'D' with the application. It is further the contention of the
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applicant that he is an old aged person suffering from diabetes
and neuropathy and sciatica and as a result of said ailment, it is
not possible for him to travel from Latur to Aurangabad on each
and every date. Even it is stated that it is difficult for the
applicant to maintain the sitting position while travelling from
Latur to Aurangabad since he resides at Latur. According to the
applicant, the litigating parties to the suit and even witnesses
belong to Latur, and hence, he prayed to transfer S.C.C. No.
1487 of 2012 from the court of the Judicial Magistrate, First
Class, Aurangabad to the competent court at Latur under
Section 407 of the Code of Criminal Procedure, in the interest of
justice.
8] Moreover, it is also the contention of the applicant
that the elder son of the applicant has filed S.T.C. No. 433 of
2012 against the applicant at Latur and it would be difficult for
the applicant to attend one proceeding at Latur and another
proceeding at Aurangabad emanating from the compromise
decree between the parties. Moreover, it is further the case of
the applicant that the distance between Auragnabad and Latur
is about 600 Kms. and it is next to impossible for the applicant to
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attend each and every date from Latur to Aurangabad due to his
physical disabilities and ailments.
9] To substantiate the afore said contentions, learned
counsel for the applicant relied upon the judicial pronouncement
in the case of Mrudul M. Damle and another vs Central
Bureau of Investigation, New Delhi, reported in (2012) 5
S.C.C. 706, as follows :-
"12. In Abdul Nazar Madani v. State of T.N., this
Court while dealing with a prayer for transfer of
the criminal case from one court to other
emphasised the importance of fairness of a trial
and observed that while no universal or hard-and-
fast rules can be prescribed for deciding a transfer
petition which has always to be decided on the
basis of the facts of each case, convenience of
the parties including the witnesses to be produced
at the trial is a relevant consideration. This Court
observed : (SCC pp.210-11, para 7)
''7. The purpose of the criminal trial is to
dispense fair and impartial justice
uninfluenced by extraneous
considerations. When it is shown that
public confidence in the fairness of a trial
would be seriously undermined, any party
can seek the transfer of a case within the
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State under Section 407 and anywhere in
the country under Section 407 CrPC. The
apprehension of not getting a fair and
impartial inquiry or trial is required to be
reasonable and not imaginary, based upon
conjectures and surmises. If it appears
that the dispensation of criminal justice is
not possible impartially and objectively and
without any bias, before any court or even
at any place, the appropriate court may
transfer the case to another court where it
feels that holding of fair and proper trial is
conducive. No universal or hard-and-fast
rules can be prescribed for deciding a
transfer petition which has always to be
decided on the basis of the facts of each
case. Convenience of the parties including
the witnesses to be produced at the trial is
also a relevant consideration for deciding
the transfer petition. The convenience of
the parties does not necessarily mean the
convenience of the petitioners alone who
approached the court on misconceived
notions of apprehension. Convenience for
the purposes of transfer means the
convenience of the prosecution, other
accused, the witnesses and the larger
interest of the society. "
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10] Accordingly, learned counsel for the applicant
submitted that convenience of the parties including the
witnesses to be examined at the trial is the relevant
consideration for transfer of criminal case from one court to
other, and accordingly, urged that in the present case the said
convenience is in favour of the applicant since witnesses also
belong to Latur, and therefore, urged that present application be
allowed for the prayers as set out herein above.
11] Learned counsel for the respondent countered the
said arguments and opposed the said application vehemently
and submitted that the respondent herein resides at
Aurangabad and the transaction in respect of the complaint filed
by the complainant took place at Aurangabad, and therefore, he
has filed the complaint before the learned Judicial Magistrate,
First Class, Aurangabad, which has jurisdiction to entertain and
try the said complaint, which is under Section 138 of the
Negotiable Instruments Act. He further submitted that out of
the four witnesses cited by the complainant, three witnesses
belong to Aurangabad and only one witness belongs to Latur,
and therefore, even the conveinence of the witnesses warrant
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that S.C.C.1487 of 2012 be tried at Aurangabad, and hence,
there is no necessity to transfer the said complaint from the
court of Judicial Magistrate, First Class, Aurangabad to the court
of Judicial Magistrate, First Class, Latur. Accordingly, learned
counsel for the respondent submitted that there is no reason to
transfer the said S.C.C.1487 of 2012 from the court of Judicial
Magistrate, First Class, Aurangabad to the court of Judicial
Magistrate, First Class, Latur, and urged that present application
be rejected.
12] I have perused the contents of the present
application, its annexures and heard the rival submissions
advanced by the learned counsel for the parties and also
perused the judicial pronouncement cited by the learned
counsel for the applicant.
13] At the out set, it is a dispute between the father and
the son, and admittedly, the applicant herein is original accused
i.e. father of respondent herein. The respondent herein has filed
S.C.C. No. 1487 of 2012 against the applicant herein before
Judicial Magistrate, First Class, Aurangabad, for the offences
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punishable under Section 138 of the Negotiable Instruments Act
on 4.4.2012 and same is pending before the said court. It is
submitted that process has been issued in the said case against
the applicant herein and the applicant appeared therein and
preferred an application on 18.8.2012 under Section 191 of the
Code of Criminal Procedure for the transfer of the said case to
the court of Judicial Magistrate, First Class, Latur. Learned trial
court obtained the say of the respondent herein, who opposed
the said application. Thereafter, learned trial court has passed
an order on the said application Exh. 33 and rejected the same
on 21.8.2012. It is also submitted that the respondent herein,
who is original complainant in the said complaint, has also filed
affidavit of evidence in the said complaint and matter is at the
stage of conducting cross-examination by the accused i.e.
applicant herein. At this juncture, the applicant has preferred
the present application for the prayers as set out herein above.
14] It appears from the title clause of the present
application that the age of the applicant is 64 years. Moreover,
the applicant has annexed the medical certificate, dated
25.7.2012 at Exh. 'E' along with the present application. A bare
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perusal of the said certificate discloses that the applicant is
suffering from diabetes, neuropathy and sciatica, and he has
difficulty in sitting position. Moreover, the applicant has also
made averment to that effect in para no. 8 of the present
application on oath. However, the respondent has not filed any
affidavit in reply and has not countered the said averment on
oath. Hence, the averment made by the applicant in respect of
the said ailment, which is substantiated by the medical
certificate, dated 25.7.2012 (Exh. 'E') is required to be accepted,
and consequently, the prayer made by the applicant herein for
transfer of the case on medical ground deserves to be granted.
15] Moreover, the S.C.C. No. 1487 of 2012 (Exh. 'C')
discloses that the complainant himself belongs to Aurangabad;
whereas one witness i.e. Branch Manager, Bank of Baroda,
belongs to Aurangabad, but another witness i.e. Branch
Manager, H.D.F.C. Bank, Latur belongs to Latur, as well as the
applicant resides at Latur, and therefore, it is apparent that
some witnesses belong to Aurangabad and some witnesses
belong to Latur. However, it cannot be ignored that the
compromise in R.C.S. No. 61 of 2008, which is the basis of the
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afore said complaint under Section 138 of the Negotiable
Instruments Act, took place before the learned Judicial
Magistrate, First Class, Chakur, District Latur. Moreover, sight
cannot be lost of the aspect of distance between Latur and
Aurangabad, which is reportedly 600 Kms. and considering the
age and ailment of the applicant, it cannot be denied that it
would be difficult for the applicant to travel the said distance on
each and every dates of the afore said case.
16] In the circumstances, reliance can be very well placed
on the judicial pronouncement cited by the learned counsel for
the applicant (supra), and considering the importance of the
fairness of the trial, the convenience of the parties including the
witnesses is the relevant consideration for transfer of criminal
case from one court to other court and having comprehensive
view of the matter, I am of the opinion that present petition
deserves to be allowed and S.C.C. No. 1487 of 2012 pending
th
before the 7 Judicial Magistrate, First Class, Aurangabad
deserves to be transferred to the competent court at Latur and
same is required to be expedited, in the interest of justice.
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17] In the result, present petition is allowed in terms of
prayer clause 'A' thereof and it is directed that S.C.C. No. 1487
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of 2012 pending before the learned 7 Judicial Magistrate, First
Class, Aurangabad be transferred to the Sessions Judge, Latur,
with direction that it be assigned to the appropriate Judicial
Magistrate, First Class, to decide it, in accordance with law,
expeditiously.
18] Rule is made absolute in the afore said terms.
(SHRIHARI P. DAVARE),
JUDGE.
dbm/crap4114.12
