Shrikrishna S/O Govind ... vs Girish S/O Ramchandra Deshpande ...
2017 Latest Caselaw 9222 Bom

949-J-APPLN-15-14                                                                              1/6


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR.


  CRIMINAL APPLICATION (APPLN) NOS.15, 35 to 48, 54, 69 to 72 OF 2014 

                                               
Shrikrishna Bahadarpurkar, 
s/o Govind Bahadarpurkar, 
Aged about 66 years, Occ.Nil, 
r/o 19/B, Raksha Lekha Society, 
Dhankavadi Pune. 

-vs- 

Girish s/o Ramchandra Deshpande
Aged about 48 years, Occ. Business, 
r/o Mathane Sankul LRT College Road, 
Akola, Taluka District Akola.                         ... non-applicant. 


Shri A. M. Sudame, Advocate for applicant in all criminal applications.  
Shri Nikhil Tekade, Advocate for non-applicant in all criminal application.  


                                              CORAM  : A.S.CHANDURKAR, J.

                                               DATE     : November 30, 2017

Common Judgment :  

Since common issue arises in all these criminal applications filed

under Section 407 of the Code of Criminal Procedure, 1973 (for short,

the Code), they are admitted and with consent of learned counsel for

the parties, the applications are taken up for final hearing.

2. The non-applicant in all these applications is the complainant who

has filed ten complaints under Section 138 of the Negotiable

Instruments Act, 1881 (for short, the Act of 1881) against the applicant

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herein. These complaints have been filed before the learned Judicial

Magistrate, First Class at Akola and the same are pending. They were

filed in the year 2007. Subsequently in the year 2008, the present

applicant filed a complaint under Sections 409, 467, 468, 471 read with

Section 34 of the Penal Code against the non-applicant in the Court of

learned Judicial Magistrate, First Class at Khadki, Pune. Said complaint

is also pending.

By the present applications it is prayed that all the complaints

filed by the non-applicant under Section 138 of the Act of 1881 be

transferred to the Court of Judicial Magistrate, First Class, Pune so that

they can be decided along with the complaint filed by the applicant

herein.

3. Shri A. Sudame, learned counsel for the applicant submitted that

the applicant is a senior citizen and his convenience ought to be taken

into account so that all proceedings are conducted at Pune. Referring to

the complaint filed by the applicant as well as the order passed in

Criminal Writ Petition No.1878 of 2008 at the Principal Seat, it was

submitted that the entire material which is collected by the

Investigating Officer is also placed before the said Court at Pune. The

witnesses sought to be examined by the applicant are from Pune and

therefore the complaints which are pending at Akola deserve to be

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transferred to the Court at Pune.

4. Shri N. Tekade, learned counsel for the non-applicant on the

other hand submitted that the cause of action for filing the complaints

under Section 138 of the Act of 1881 has arisen at Akola. The notices

under the Act of 1881 were issued from Akola. The complaint filed by

the applicant herein is only to counter the complaints under Section 138

of the Act of 1881 and is subsequent to the complaints filed by the non-

applicant. The witnesses sought to be examined are from Akola and

merely on the ground that it is convenient for the applicant to attend

the proceedings at Pune, all the cases cannot be transferred there. In

support of his submissions the learned counsel paced reliance on the

decisions in Abdul Nazar Madani vs. State of T.N. and anr. (2000) 6

SCC 204, Abhiram Veer vs. North Eastern Regional Agricultural

Marketing Corporation Ltd. (2000) 10 SCC 433, B. R. Gupta and

anr vs. Rohit Jain (2007) 7 Supreme Court Cases 454, Monica vs.

Satish Sharma and ors. 2010 ALL MR (Cri) 669 and Ram Tattan vs.

State of Haryana and ors. 2004 Cri.L.J. 3617.

5. I have heard the learned counsel for the parties at length and I

have perused the documents filed on record. Under provisions of

Section 407 of the Code, transfer of proceedings from one Court to

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another can be ordered if it is found that same would be to the general

convenience of the parties or witnesses or that the same is expedient for

the ends of justice. Such power can be exercised by the High Court

even on its own initiative under Section 407(2) of the Code. As

observed in Abdul Nazar Madani (supra), there cannot be any

universal rule for deciding a transfer petition and it has to be decided

on the basis of the facts of each case. Convenience of parties and

witnesses is one of the relevant consideration. However, convenience of

parties would not mean the convenience of one of such parties alone. It

would be in convenience of the entire case. In B. R. Gupta and ors.

(supra) filing of a case prior in time to the other case was given

weightage.

6. While examining the facts of the present cases it can be seen that

the cheques in question drawn by the applicant were presented for

being cleared. Notices under Section 138 of the Act of 1881 were

issued from Akola and all the complaints under Section 138 of the Act

of 1881 were filed in the year 2007. There are in all ten complaints

filed by the non-applicant. The complaint filed by the applicant is in the

year 2008 and the same has been filed at Pune. It alleges breach and

cheating at the behest of the non-applicant. Taking an overall view of

the matter and in exercise of jurisdiction under Section 407(2) of the

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Code, I find that as above ten complaints were already filed at Akola by

the non-applicant after which the applicant filed his complaint at Pune

and as both the proceedings relate to the same cheques, it would be

expedient if the complaint filed at Pune by the applicant is transferred

for being heard along with the complaints filed by the non-applicant at

Akola. While doing so care can be taken that the applicant is not

required to frequently visit Akola for prosecuting all the cases. The

applicant can be directed to remain present only when his presence is

necessary either for recording his evidence or for being cross-examined.

He can be represented through his lawyer on other occasions.

Appropriate directions in that regard or any other directions found

necessary in the interests of justice can be issued by the trial Court so as

to avoid unnecessary presence of the applicant and his witnesses, if

any, at Akola.

7. Accordingly the following order is passed :

The proceedings in Criminal Case No.21/2008 filed by the

applicant and pending in the Court of Judicial Magistrate, First Class,

Pune are directed to be transferred to the Court of Judicial Magistrate,

First Class, Akola for being tried with Criminal Case No.5631/07 and

other connected cases filed by the non-applicant. All proceedings shall

be decided together on their own merits and in accordance with law.

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The trial Court shall issue appropriate directions requiring the presence

of the applicant at Akola only when found necessary.

Applications are disposed of in above terms. No costs.

JUDGE

Asmita