H.B. Chaturvedi vs State & Anr.
2014 Latest Caselaw 5682 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

       TR.P.(Crl) No. 49 of 2014 & Crl.M.A. 11365 of 2014 (for stay)

       H.B.CHATURVEDI                              ..... Petitioner
                    Through: Mr. Vijay Aggarwal with
                    Ms. Katyayini, Advocates.

                            versus

       STATE & ANR                                      ..... Respondents
                            Through: Ms. Isha Khanna, APP for R-1/State.
                            Mr. Sanjeev Bhandari, Standing Counsel for R-
                            2/CBI.
                            Mr. R.K. Srivastava, Advocate for R-10.
                            Mr. Sundeep Goel, Advocate for R-12.
                            Mr. M.Z. Choudhary with Mohd. Zahid
                            Hussain, Advocate for R-13.
                            Ms. Neha Rajpal, Advocate for R-17.

       CORAM: JUSTICE S. MURALIDHAR

                            ORDER

12.11.2014

1. This is a petition under Section 407 read with Section 482 of the Code

of Criminal Procedure, 1973 („Cr PC‟) filed by the Petitioner, H.B.

Chaturvedi, seeking transfer of 11 cases initiated against the Petitioner

by Respondent No. 2, Central Bureau of Investigation („CBI‟) and three

cases by Respondent No. 1, State through Delhi Police („DP‟), to a single

Court.

2. The Petitioner is stated to be 81 years old. The principal allegation

against the Petitioner is that in connivance with the other accused, who

are Respondent Nos. 3 to 22 in the petition, he caused financial losses to

the banks and financial institutions by availing loans on fabricated

documents and by committing fraud. According to the Petitioner, in the

cases initiated by the CBI, the principal allegation is of availing of loans

from the banks by the companies, and their directors, who are accused,

by submitting false and bogus invoices. The further allegation is that the

loans taken were for paying money to the non-existent supplier

companies against the purported supply of machinery under the Term

Loan facilities. Subsequently, the funds were further diverted from the

fictitious/non-existent companies to the account of the Shamken Group

of Companies.

3. The Petitioner has placed on record a chart showing the details of 11

CBI cases and three other criminal cases, i.e., FIR No. 702 of 2004

registered at Police Station („PS‟) Badarpur, FIR No. 89 of 2005

registered at PS Mandir Marg, and FIR No. 368 of 2006 registered at PS

Okhla. The common offences in these fourteen cases are under Sections

120B, 420, 468 and 471 IPC apart from Sections 406, 409, 467, 511 IPC.

In four of the CBI cases, since the allegations are against the bank

officials as well, the offence under Sections 13 (2) read with Section 13

(1) (d) of the Prevention of Corruption Act, 1988 („PC Act‟) has also

been added.

4. The chart placed on record by the Petitioner show that the three of the

CBI cases are pending before the Court of the Special Judge, Saket

Courts, New Delhi; one is before the Court of the Special Judge, Patiala

House Courts (PHC); five are before the Court of the Additional Chief

Metropolitan Magistrate („ACMM‟), Tis Hazari Courts, Delhi; one is

before the Court of the ACMM, Dwarka Courts, Delhi. The three cases

by the State arising out of FIR Nos. 702 of 2004, 89 of 2005 and 368 of

2006 are pending before the Court of the Chief Metropolitan Magistrate

(„CMM‟), PHC. The Petitioner and Respondents 3 (Amit Chaturvedi), 4

(Sanjay Chaturvedi) and 5 (Parveen Juneja) are common to all the 14

cases. The Petitioner has also pointed out that the accused in some of the

FIRs are prosecution witnesses in certain others.

5. The Petitioner has also enclosed a chart showing that in the 11 CBI

cases there are five common witnesses. These are, Amit Chaudhary,

Sushil Kumar Jain, Jagdish Salwan, Kapil Aggarwal and Shyam Sunder

Sharma. Companies belonging to the Shamken Group of Companies are

arrayed as accused in most of the 14 cases.

6. The Petitioner states that Transfer Petition (Criminal) No. 357 of 2011

was dismissed by the learned District & Sessions Judge by order dated

3rd December 2012 on the ground that the cases were based on different

transactions at different points of time and that the trial of all the cases

by one Court would cause unnecessary harassment. The order further

stated that "offences under the IPC are magisterial trial and in case the

case pending before the Court of the learned ACMM is transferred to the

Court of the learned Additional Sessions Judge („ASJ‟), the accused is

deprived of one right of appeal."

7. Mr. Vijay Aggarwal, learned counsel appearing for the Petitioner

states that the Petitioner is seeking transfer of all the CBI cases pending

before different Courts of Special Judges to one Court and all the other

CBI cases pending before the Courts of different ACMMs to the Court

of the CMM PHC.

8. The CBI has filed a reply to the petition detailing the allegations in the

different cases. It is pointed out that the 14 cases pending against the

Petitioner and other accused have different facts and evidence; they

concern separate conspiracies hatched during different periods of time

and for cheating various banks. Mr. Sanjeev Bhandari, learned Counsel

for the CBI, submitted that while some of the accused are common in

one or two cases and five witnesses are common, there are many other

witnesses in individual cases, who have nothing to do with the other

cases. He further submitted that the cases are for the different

conspiracies hatched by the Petitioner with different sets of co-accused

persons, during different periods between 1997 and 2003 for causing

wrongful loss to the different banks and financial institutions. He further

submitted that Section 218 Cr PC mandates a separate charge and trial

for distinct offences. Reliance is placed on the decision of the Supreme

Court in Narinderjit Singh Sahni v. Union of India AIR 2001 SC 3810.

It is submitted that the present petition has been filed by the Petitioner

only to delay the proceedings in the cases.

9. Learned counsel for the other accused/Respondents (other than

Respondents 3, 4 and 5 who support the Petitioner) also expressed an

apprehension that matters might be delayed if they are transferred to one

or two Courts as prayed for by the Petitioner.

10. The Court has considered the above submissions. The first issue to

be considered is whether it is in the interest of justice for this Court to

exercise its powers under Section 407 Cr PC to transfer the cases.

Section 407 (1) (c) and (2) Cr PC which is relevant for the purposes of

the present case, reads thus:

"407. Power of High Court to transfer cases and appeals.-(1) Whenever it is made to appear to the High Court-

(a) .....

(b).......

(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order-

(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial of to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative;

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him."

11. A perusal of the details of the FIR in the 11 CBI cases and in the

other three State cases shows that the pattern of the transactions and the

manner of defrauding the financial institutions on the basis of the

purported documents and availing of loans and diverting the funds to

other entities is similar. While the Petitioner and Respondents 3, 4 and 5

figure as accused in all the cases, the companies who acted in

connivance with them to defraud the financial institutions and banks

differ.

12. The factors that require to be noticed for the purposes of the present

petition in the context of Section 407 (1) (c) Cr PC is that there are at

least five common witnesses in the cases. It is not that these witnesses

would have to come to depose in all the cases. They would be called as

and when the cases where they are concerned are taken up. This can

easily be regulated by the Court concerned.

13. In A.E. Premanand v. Escorts Finance Limited (2004) 13 SCC 527

the Supreme Court held that since there are three complaints of

dishonour of cheques arising out of the same transaction and filed in

three different places it would be in the interest of justice that they be

transferred to be tried by one Court. In Ayyanar Agencies v. Sri Vishnu

Cement Ltd. (2000) 10 SCC 596, the Supreme Court was dealing with a

case where five complaints against the Petitioners were pending in

Chennai and for the same offence under the same Act there was another

complaint in Hyderabad. Transfer of the case from Hyderabad to

Chennai was ordered in the interest of justice and "for the convenience

of conducting the trial and disposal of all the cases." Likewise in Global

Infrastructure & Technologies Ltd. v. G.K. Builders (2005) 12 SCC

427 and Vikram Tractors v. Escorts Ltd. (2005) 10 SCC 80, Negotiable

Instruments Act complaint cases in different cities were transferred to

one court.

14. One factor that should weigh with the Court when considering a

prayer for transfer of cases under Section 407 Cr PC is whether such

transfer of cases from different courts to one Court will delay the

proceedings. The nature of the case, the number of witnesses involved

and importantly the stage at which the cases are will be important factors

for the Court to consider. Here it is seen that nine of the CBI cases are at

the stage of arguments on charge. In the case of the CBI pending before

the learned ACMM, Tis Hazari Courts (743/1 RCBD1/2009/E/0001) the

accused have been summoned. In another case of the CBI

(RCBD1/E/0002) the accused are yet to be summoned. The transfer of

the above cases will, therefore, not cause prejudice to any of the parties

if they are ordered to be continued from the respective stages at which

they are.

15. As far as the CBI cases pending in the Courts of the ACMM, if they

are directed to continue from the stage at which they are when

transferred to one Court of the CMM that would will take care of the

apprehension that in the cases triable by the CMM/ACMM, if transfer to

a court of a higher jurisdiction is directed, the accused might be deprived

of one tier of appeal.

16. As far as the other accused are concerned, only those in the cases

concerned will be required to be present on any given date. This aspect

can easily be managed by the Court concerned so that all the accused in

the cases need not be present on all the dates. Likewise, only those

witnesses should be called who are concerned with the cases listed on a

given day. Where a large number of cases involving the same accused

and similar nature of charges, it might be expedient for the witnesses, the

parties and even the Court if the cases are transferred to one or two

courts. The Court is satisfied that the transfer of the cases in the manner

proposed to be ordered by this Court satisfies the requirement of Section

407 (1) (c) Cr PC, viz., that it "will tend to the general convenience of

the parties or witnesses, or is expedient for the ends of justice."

17. Although the Petitioner has invoked Section 220 (1) Cr PC and other

provisions to urge that all the cases form part of the 'same transaction'

and satisfy the requirements of a joint trial, this Court does not consider

it necessary at this stage to express any view thereon. It is made clear

that the transfer ordered by this Court of the cases should not be

construed as an order for the joint trial or consolidation of the cases. As

and when any of the parties make an application in that regard it will be

for the court to which the cases have been transferred to consider such

prayer on its merits.

18. Consequently, it is directed that

(i) the following cases pending before the Court of Mr. Sanjeev

Jain, learned Special Judge, Saket Courts, i.e.,

(a) RC.BD1/2008/E/0010 (39/12)

(b) RC.BD1/2009/E/0013 (40/12),

(c) RC.BD1/2009/E/0008 (38/12)

shall be transferred to the Court of Ms. Swarna Kanta, learned

Special Judge, CBI, PHC before which Court RCBD1/2009/E/0010

(01/14) is pending; and

(ii) The above cases will be listed on 15th December 2014 in the

Court of Ms. Swarna Kanta, learned Special Judge, CBI, PHC New

Delhi and will proceed from the stage at which each of them is at

present.

(iii) where any party is unrepresented a fresh notice be issued to

such party

(iv) all parties will co-operate with the Court in facilitating the

expeditious disposal of the cases without seeking unnecessary

adjournments.

(v) the following cases pending in the Court of Mr. Sudhanshu

Kaushik, learned ACMM, Tis Hazari Courts, i.e.

(a) RC.BD1/2009/E/0005 (737/1),

(b) RC.BD1/2009/E/0001 (743/1),

(c) RC.BD1/2009/E/0006 (752/1),

(d) RC.BD1/2009/E/0006 (750/1)

(e) RC.BD1/2008/E/0009 (743/1)

(f) RC.BD1/E/0002

and

(g) RC.BD1/2009/E/0009 (322/10) pending in the Court of Mr.

Satish Kumar Arora, learned ACMM, Dwarka Courts,

shall be transferred to the Court of Mr. Sanjay Khanag, learned

CMM, PHC before which Court cases arising out of FIR No. 702 of

2004 registered at Police Station („PS‟) Badarpur, FIR No. 89 of

2005 registered at PS Mandir Marg, and FIR No. 368 of 2006

registered at PS Okhla are pending.

(vi) The cases at (v) (a) to (g) will be listed on 16 th December 2014

in the Court of Mr. Sanjay Khanag, learned CMM, PHC and

will proceed from the stage at which of them is and;

(vii) where any party is unrepresented a fresh notice be issued to

such party;

(viii) all parties will co-operate with the Court in facilitating the

expeditious disposal of the cases without seeking unnecessary

adjournments.

19. The petition and pending application are disposed of in the above

terms. Order be given dasti to learned counsel for the parties.

20. A certified copy of this order be delivered forthwith to the respective

concerned Courts for compliance.

S. MURALIDHAR, J.

NOVEMBER 12, 2014 Rk