Chattisgarh High Court
M/S Gouthami Hatcheries Pvt. Ltd vs State Of Chhattisgarh on 1 October, 2021
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 1908 of 2018
Order Reserved on : 04.08.2021
Order Delivered on : 01.10.2021
1. M/s Gouthami Hatcheries Pvt. Ltd. Registered Office at Flat
No. 102, First Floor, 5-922/40, JVR Amrut Enclav, Adarsh
Nagar Hyderabad (Telangana).
2. Dendi Shreenath Reddy, S/o Shri Dendi Jangi Reddy, Aged
About 49 Years.
3. Mrs. Dendi Lokeshawari, W/o Shri Dendi Shreenath Reddy,
Aged About 47 Years.
Borh are R/o 5-922/40, Adarsh Nagar, Near Birla Mandir,
Saifabad Khairatabad, Hyderabad (Telangana).
---- Petitioners
Versus
1. State of Chhattisgarh, Through- District Magistrate,
Rajnandgaon (C.G.)
2. M/s Indian Agro and Food Industries Ltd. Registered Officer at
Village- Indamara, Post- Pendri, District- Rajnandgaon (C.G.)
---- Respondents
CRMP No. 1915 of 2018
1. M/s Gouthami Hatcheries Pvt. Ltd. Registered Office at Flat
No. 102, First Floor, 5-922/40, JVR Amrut Enclav, Adarsh
Nagar Hyderabad (Telangana).
2. Dendi Shreenath Reddy, S/o Shri Dendi Jangi Reddy, Aged
About 49 Years.
3. Mrs. Dendi Lokeshawari, W/o Shri Dendi Shreenath Reddy,
Aged About 47 Years.
Borh are R/o 5-922/40, Adarsh Nagar, Near Birla Mandir,
Saifabad Khairatabad, Hyderabad (Telangana).
---- Petitioners
Versus
1. State of Chhattisgarh, Through- District Magistrate,
Rajnandgaon (C.G.)
2. M/s Indian Agro and Food Industries Ltd. Registered Officer at
Village- Indamara, Post- Pendri, District- Rajnandgaon (C.G.)
---- Respondents
AND
CRMP No. 1922 of 2018
1. M/s Gouthami Hatcheries Pvt. Ltd. Registered Office at Flat
No. 102, First Floor, 5-922/40, JVR Amrut Enclav, Adarsh
Nagar Hyderabad (Telangana).
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2. Dendi Shreenath Reddy, S/o Shri Dendi Jangi Reddy, Aged
About 49 Years.
3. Mrs. Dendi Lokeshawari, W/o Shri Dendi Shreenath Reddy,
Aged About 47 Years.
Borh are R/o 5-922/40, Adarsh Nagar, Near Birla Mandir,
Saifabad Khairatabad, Hyderabad (Telangana).
---- Petitioners
Versus
1. State of Chhattisgarh, Through- District Magistrate,
Rajnandgaon (C.G.)
2. M/s Indian Agro and Food Industries Ltd. Registered Officer at
Village- Indamara, Post- Pendri, District- Rajnandgaon (C.G.)
---- Respondents
For Petitioners : Mr. Maneesh Sharma, Advocate.
For State/Resp. 1 : Mr. Sudeep Verma, Dy. Govt. Advocate.
For Resp. No. 2 : Mr. T.K. Jha, Adv. & Mr. Pradeep Kumar
Shrivastava, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
CAV Order
1. Since same set of facts are involved in all the petitions,
therefore, they are heard analogously and are being disposed
of by this common order. (For the sake of convenience, CRMP
No. 1908 of 2018 is taken up as lead case).
2. The petitioners have filed these petitions under Section 482 of
the Cr.P.C. challenging legality and propriety of the order
dated 09.07.2018 (Annexure P/1) passed by Sessions Judge,
Rajnandgaon (C.G.) in Criminal Revision No. 41/2018 (M/s
Indian Agro and Food Industries Ltd. Vs. M/s Gouthami
Hatcheries Pvt. Ltd. & others) by which the revision petition
filed by respondent No. 2 has been allowed and quashed the
order dated 29.01.2018 passed by Chief Judicial Magistrate,
Rajnandgaon (C.G.) in Complaint Case No. 861/2017, by
which right of the complainant to lead evidence was closed.
The learned Sessions Judge has also transferred the cases
from Court of Judicial Magistrate First Class to Chief Judicial
Magistrate, Rajnandgaon (C.G.) to decide the case in
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accordance with law. Being aggrieve by these orders, the
petitioners have filed these petitions.
3. The brief facts as projected by the petitioners are that
petitioner No. 1 is a company whereas petitioner No. 2 & 3 are
Managing Directors of the company. There was business
transactions between petitioners and respondent No. 2. In
pursuance of the business transaction, petitioners have given
Cheque No. 688759 dated 15.12.2016 to respondent No. 2
which was bounced due to insufficient funds, therefore,
respondent No. 2 filed complaint against the petitioners under
Section 138 of the Negotiable Instruments Act, 1881 before
Judicial Magistrate First Class, Rajnandgaon, which is
registered as Complaint Case No. 861/2017. The details of
order passed by Revisional Court as well as Chief Judicial
Magistrate and cheque numbers in all the cases, are given in
table form, which are as under :-
CRMP No. Revisional Chief Judicial Cheque
Court's Order & Magistrate Order No.
date & date
CRMP No. CRR No. 41/2018 Complaint Case 688759
1908/2018 dated 09.07.2018 No. 861/2017
dated 29.01.2018
CRMP No. CRR No. 51/2018 Complaint Case 002195
1915/2018 dated 09.07.2018 No. 3800/2016
dated 29.01.2018
CRMP No. CRR No. 43/2018 Complaint Case 688760
1922/2018 dated 09.07.2018 No. 862/2017
dated 29.01.2018
4. The learned Judicial Magistrate First Class after taking
cognizance of the complaint, issued notice to the petitioners/
accused persons directing them to appear before him. On
24.07.2017, petitioners appeared before Judicial Magistrate
First Class and furnished bail bond as directed by Judicial
Magistrate First Class and the case was fixed for framing of
charges on 21.08.2017. On 21.08.2017, charges could not be
framed, therefore, the case was adjourned to 23.09.2017 &
thereafter adjourned to 10.10.2017 for framing of charges. On
10.10.2017, charges against the petitioners/accused have
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been framed and learned Judicial Magistrate First Class fixed
the case on 04.12.2017 for recording evidence of complainant
witnesses. On 04.12.2017, complainant sought time for
recording of evidence which was allowed, therefore,
proceeding was adjourned to 12.01.2018. On 12.01.2018
witnesses of the complainant were present, but learned
counsel for the petitioner/ accused sought time, which was
allowed and thereafter, the case was fixed for 22.01.2018. On
22.01.2018, the petitioner sought time for cross-examination
as his original counsel was not available, therefore, the
learned Judicial Magistrate First Class adjourned the case to
29.01.2018. On 29.01.2018, petitioners moved an application
under Rule 13 M.P. Rules & Orders (Criminal) (for short "the
Rule 13") for providing the Hindi translation copy of the
complaint and application under Section 45 of the Indian
Evidence Act for sending the document to handwriting expert
contending that the accused have given blank cheque as
surety in which, the complainant has mentioned the excess
amount, therefore, the cheque should be sent to handwriting
expert or to any Government official document examiner to
establish the fabrication committed by the complainant, for
which the accused are ready to bear the expenses. The
learned Judicial Magistrate First Class rejected the application
for providing Hindi translation of the document relying upon
the Share Place Agreement dated 15.11.2014 in which, the
accused have put their signature in English, therefore, finding
has been recorded that accused can very well understand the
English language. The learned Judicial Magistrate First Class
has also rejected the application under Section 45 of the
Indian Evidence Act submitted by the accused. Thereafter,
learned counsel for the accused moved an application stating
that there is sudden demise in the family of original counsel
Ravindra Reddy and he will be available only after
23.02.2018, therefore, the case may be adjourned to
23.02.2018. The learned Judicial Magistrate First Class
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considering the guidelines issued by this Court on 15.12.2017
rejected the application on the ground that the accused are
adopting delay tactics to linger on the proceeding of the case
and fixed the case for cross-examination after post session.
5. Learned counsel for respondent No. 2 submitted before the
trial Court on the same day i.e. on 29.01.2018 that the original
documents are not available with him, therefore, he may be
given time to submit the same. Learned trial Court after
recording findings fixed the case on 04.09.2017, 23.09.2017,
10.10.2017, 04.12.2017, 12.01.2018, 22.01.2018, but
complainant did not submit the original documents, therefore,
directed the complainant to produce original document failing
which, opportunity to lead evidence will be closed and also
made certain observations against the for counsel for the
complainant. At 4 O'clock, learned counsel for the complainant
informed the Court that the original documents are available
with him and he is ready for evidence. Learned counsel for the
petitioner/ accused submitted that they are willing to file
revision against order passed by this Court, therefore, cross-
examination of the complainant may be deferred. Learned trial
Court rejected their objection and thereafter fixed the case for
cross-examination after some time. At about 4.30 p.m.,
learned counsel for the petitioner submitted that some
documents are kept with Company Secretary- Girdhari Lal
Soni, therefore, they may be given time to produce the same.
6. Learned Judicial Magistrate First Class relying upon judgment
of Hon'ble the Supreme Court as well as the direction issued
by this Court has rejected the application of the petitioner to
lead evidence and also fixed the case on 27.02.2018 for
cross-examination. On 27.02.2018, the case was ordered to
be fixed on 26.03.2018 for cross-examination of complainant
witnesses. On 26.03.2018, learned trial Court again directed
the accused to cross-examine the witnesses of the
complainant thereafter, fixed the case on 12.04.2018 for
defence witnesses.
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7. On 12.04.2018, the accused recorded their statements under
Section 313 of the Cr.P.C. and closed their right to lead further
evidence. The learned trial Court fixed the case on 25.04.2018
and also directed the complainant and accused to submit their
written submission. The respondent No. 2 filed revision
petition before learned Sessions Judge, who vide impugned
order dated 09.07.2018 allowed the revision and quashed the
order passed by learned Judicial Magistrate First, further
directed to transfer the case to Chief Judicial Magistrate to
decide the case, in accordance with law.
8. On above factual foundation, the learned counsel for the
petitioner would submit that the impugned order passed by
Revisional Court has committed material illegality and
irregularity by quashing the order dated 30.01.2018 as
sufficient opportunity has been given to respondent No. 2 still
he has not availed the same, therefore, no further opportunity
should have been granted as per the guidelines issued by this
Court for early disposal of the case which has been rightly
followed by learned Chief Judicial Magistrate.
9. He placed reliance upon the judgment passed by Hon'ble the
Supreme Court in Nitinbhai Saevatilal Shah & another Vs.
Manubhai Manjibhai Panchal & another1, wherein it has
been ordered directing transfer of the case while deciding the
application for revision is only unwarranted and otherwise not
permissible under the law, as such, the learned Sessions
Judge should not have transferred the case as no application
for transferring the case has been filed by the petitioner. He
would refer para 19 of the judgment passed by Hon'ble the
Supreme Court in Nitinbhai Saevatilal Shah (Supra), which
reads as under:-
"19. The cardinal principal of law in criminal trial is
that it is a right of an accused that his case should
be decided by a Judge who has heard the whole
of it. It is so stated by this Court in the decision in
Payare Lal Vs. State of Punjab [AIR 1962 SC
690 : (1962 (1) CriLJ 688)]. This principle was
1 (2011) 9 SCC 638
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being rigorously applied prior to the introduction of
Section 350 in the Code of Criminal Procedure,
1898. Section 326 of the new Code deals with
what was intended to be dealt with by Section 350
of the old Code."
10. Refuting the submission made by learned counsel for the
petitioner, the learned counsel for respondent No. 2 would
submit that the learned Revisional Court has not committed
any illegality in transferring the case to the learned Chief
Judicial Magistrate as huge amount of Rs. 6 Cr. was involved
and looking to the manner in which the trial Court has
conducted the trial, it is apparent that respondent No. 2 will
not get justice from the Court and has lost faith on the trial
Court and would pray for dismissal of the revision petition.
Learned counsel would also submit that the present CRMP
under Section 482 of the Cr.P.C. is not maintainable as the
revision filed by the petitioner has been allowed by the
Sessions Judge whereas as per Section 401 of the Cr.P.C.,
the petitioner has remedy of filing revision before this Court,
as such, present CRMP is not maintainable.
11. On the other hand, learned counsel for the petitioner would
submit that present CRMP is maintainable in the light of
judgment passed by Hon'ble Supreme Court in Prabhu
Chawla & State of Rajasthan & another 2, wherein Hon'ble
the Supreme Court has held as under:-
"5. Mr. Goswami also placed strong reliance upon
judgment of Krishna Iyer, J. in a Division Bench in
the case of Raj Kapoor and Ors v. State and Ors.
[(1980) 1 SCC 43]. Relying upon judgment of a
Bench of three Judges in the case of Madhu
Limaye v. The State of Maharashtra [(1977) 4
SCC 551] and quoting therefrom, Krishna Iyer, J.
in his inimitable style made the law crystal clear in
paragraph 10 which runs as follows: (Raj Kapoor
case, SCC pp. 47-48)
"10. The first question is as to whether the
inherent power of the High Court under
Section 482 stands repelled when the
revisional power under Section 397
overlaps. The opening words of Section 482
contradict this contention because nothing
2 (2016) 16 SCC 30
of the Code, not even Section 397, can
affect the amplitude of the inherent power
preserved in so many terms by the language
of Section 482. Even so, a general principle
pervades this branch of law when a specific
provision is made: easy resort to inherent
power is not right except under compelling
circumstances. Not that there is absence of
jurisdiction but that inherent power should
not invade areas set apart for specific power
under the same Code. In Madhu Limaye v.
The State of Maharashtra this Court has
exhaustively and, if I may say so with great
respect, correctly discussed and delineated
the law beyond mistake. While it is true that
Section 482 is pervasive it should not
subvert legal interdicts written into the same
Code, such, for instance, in Section 397(2).
Apparent conflict may arise in some
situations between the two provisions and a
happy solution
'would be to say that the bar provided in
sub-section (2) of Section 397 operates only
in exercise of the revisional power of the
High Court, meaning thereby that the High
Court will have no power of revision in
relation to any interlocutory order. Then in
accordance with one or the other principles
enunciated above, the inherent power will
come into play, there being no other
provision in the Code for the redress of the
grievance of the aggrieved party. But then, if
the order assailed is purely of an
interlocutory character which could be
corrected in exercise of the revisional power
of the High Court under the 1898 Code, the
High Court will refuse to exercise its
inherent power. But in case the impugned
order clearly brings about a situation which
is an abuse of the process of the Court or
for the purpose of securing the ends of
justice interference by the High Court is
absolutely necessary, then nothing
contained in Section 397(2) can limit or
affect the exercise of the inherent power by
the High Court. But such cases would be
few and far between. The High Court must
exercise the inherent power very sparingly.
One such case would be the desirability of
the quashing of a criminal proceeding
initiated illegally, vexatiously or as being
without jurisdiction". In short, there is no
total ban on the exercise of inherent power
where abuse of the process of the court or
other extraordinary situation excites the
court's jurisdiction. The limitation is self-
restraint, nothing more. The policy of the law
is clear that interlocutory orders, pure and
simple, should not be taken up to the High
Court resulting in unnecessary litigation and
delay. At the other extreme, final orders are
clearly capable of being considered in
exercise of inherent power, if glaring
injustice stares the court in the face. In
between is a tertium quid, as Untwalia, J.
has pointed out as for example, where it is
more than a purely interlocutory order and
less than a final disposal. The present case
falls under that category where the accused
complain of harassment through the court's
process. Can we state that in this third
category the inherent power can be
exercised? In the words of Untwalia, J.:
(SCC p. 556, para 10)'."
12. From the afore-stated legal provision, it is quite vivid that even
availability of alternate remedy of filing revision, this Court can
hear the petition under Section 482 of the Cr.P.C. as there is
no legal impediment. Even otherwise, in the present case, the
Cr.M.P. has been filed on 15.09.2018 and after remain
pending for three years, it will not be justifiable for this Court
to relegate the petitioner for filing of revision petition under
Section 401 of the Cr.P.C. before this Court, thus, the
objection raised by respondent No. 2 is not sustainable in
view of the peculiar facts and circumstances of the case.
Therefore, this Court is deciding the present CRMP on its own
merit.
13. The learned counsel for the petitioner would submit that since
the order passed by the Revisional Court for transferring of
the case is without jurisdiction, as such, the same is liable to
be quashed by this Court. The judgment passed by Hon'ble
the Supreme Court in Nitinbhai Saevatilal Shah (Supra) is
not applicable to the facts of the case as in the present case
the evidence has not been recorded and in fact the right of the
complainant has been closed in arbitrary manner in violation
of principle of natural justice and fair play.
14. From the facts reflected in the order-sheet, it is quite clear that
the Magistrate was not conducted trial in judicial manner, but
infact he has closed the right of the complainant to lead
evidence in a hurry manner denying proper opportunity to the
complainant. The learned trial Court has made certain
observations against counsel for the respondent, which shows
that the Magistrate has not conducted trial in a fair manner.
The trial Court, in which manner was conducting the trial,
could certainly give impression in mind of the complainant that
he will not get proper justice, therefore, the learned Sessions
Judge has not committed illegality in transferring the case to
the trial Court. It has been well settled legal preposition that
fair trial is paramount consideration of dispensing justice
system, therefore, there is no illegality in the order of learned
Sessions Judge in transferring the case.
15. Learned Judicial Magistrate First Class in the garb of
guidelines issued by this Court has adversely affected right of
the complainant to contest his case properly which is not
objected by the guidelines issued by this Court. It is evident
that the proceeding were adjourned on pretext of respondent
No. 2. The trial Court should have been seen that the charges
have been framed on 10.10.2017 and the case was fixed for
evidence on 04.12.2017. On 04.12.2017, the case was
adjourned and fixed for 12.01.2018. On 12.01.2018 witnesses
of the complainant were present, but learned counsel for the
petitioner/ accused sought time, which was allowed and
thereafter, the case was fixed for 22.01.2018. On 22.01.2018,
the petitioner sought time for cross-examination as his original
counsel was not available, therefore, the learned Judicial
Magistrate First Class adjourned the case to 29.01.2018. On
the said date, learned counsel for the petitioner has sought
time which was allowed. The petitioner/ accused have sought
time as original advocate was not available for cross-
examination, thereafter, matter was fixed on 29.01.2018. On
29.01.2018, two applications have been filed by the petitioner/
accused firstly under the Rule 13 for providing translation
copy of the documents and another one under Section 45 of
the Indian Evidence Act for examination of the document by
the expert which has been rejected and on the said date
learned counsel for the petitioner/ accused moved an
application that they intend to challenge this order before the
Revisional Court, therefore, the examination of witnesses may
kindly be withheld
16. Hon'ble the Supreme Court in Harita Sunil Parab & State
(NCT of Delhi) & others3, has held as under:-
"7. In Gurcharan Das Chadha v. State of
Rajasthan, (1966) 2 SCR 678, dealing with the
issue for transfer of a case, it was observed:
"13....The law with regard to transfer of
cases is well-settled. A case is transferred if
there is a reasonable apprehension on the
part of a party to a case that justice will not
be done. A petitioner is not required to
demonstrate that justice will inevitably fail.
He is entitled to a transfer if he shows
circumstances from which it can be inferred
that he entertains an apprehension and that
it is reasonable in the circumstances
alleged. It is one of the principles of the
administration of justice that justice should
not only be done but it should be seen to be
done. However, a mere allegation that there
is apprehension that justice will not be done
in a given case does not office. The Court
has further to see whether the apprehension
is reasonable or not. To judge of the
reasonableness of the apprehension the
State of the mind of the person who
entertains the apprehension is no doubt
relevant but that is not all. The apprehension
must not only be entertained but must
appear to the Court to be a reasonable
apprehension."
8. The apprehension of not getting a fair and
impartial enquiry or trial is required to be
reasonable and not imaginary, based upon
conjectures and surmises. No universal or hard
3 (2018) 6 SCC 358
and fast rule can be prescribed for deciding a
transfer petition, which will always have to be
decided on the facts of each case. Convenience
of a party may be one of the relevant
considerations but cannot override all other
considerations such as the availability of
witnesses exclusively at the original place,
making it virtually impossible to continue with the
trial at the place of transfer, and progress of which
would naturally be impeded for that reason at the
transferred place of trial. The convenience of the
parties does not mean the convenience of the
petitioner alone who approaches 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. The charge sheet in FIR No.351 of
2016 reveals that of the 40 witnesses, the
petitioner alone is from Mumbai, two are from
Ghaziabad, and one is from NOIDA. The charge
sheet of FIR No.1742 of 2016 is not on record. A
reasonable presumption can be drawn that the
position would be similar in the same also."
17. The Revisional Court has rightly transferred the case to the
Chief Judicial Magistrate, therefore, transfer of case to the
Chief Judicial Magistrate cannot be said to be illegal which
warrants any interference by this Court. The Revisional Court
has rightly quashed the order wherein right of the complainant
to lead evidence has been closed as no proper opportunity of
hearing was given to them and on the same day, the accused
recorded their statements under Section 313 of the Cr.P.C.
which shows that Chief Judicial Magistrate was very much
hurry to decide the case. Thus, there was sufficient material
for Revisional Court to quash the order dated 29.01.2018 and
transferred the case to Chief Judicial Magistrate, which does
not warrant interference by this Court. Therefore, all the
petitions filed by the petitioners bearing CRMP No. 1908 of
2018, CRMP No. 1922 of 2018 & CRMP No. 1915 of 2018 are
liable to be dismissed.
18. This Court vide its order dated 19.09.2018 stayed the further
proceeding pending before the Chief Judicial Magistrate, the
same stands vacated. Learned Chief Judicial Magistrate is
directed to decide the case within a period of one year from
the date of receipt of copy of this Court.
19. The parties are directed to appear before the trial Court on
15th November, 2021 and thereafter, the trial Court shall make
endeavor to conclude the trial within one year from the date of
first appearance i.e. on 15th November, 2021. No unnecessary
adjournment will be granted to the parties until and unless
there are emergent situations.
20. With the aforesaid observations and directions, these petitions
are dismissed. No order as to cost.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
