Gauhati High Court
Page No.# 1/6 vs Abdul Gofur Mondal on 4 August, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/6
GAHC010163092025
2025:GAU-AS:10182
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Tr.P.(Crl.)/34/2025
MD FAYZAL HOQUE
S/O MD. JALIM UDDIN
R/O DOMORKUCHI, BIKASH NAGAR, BYE LANE NO. 4, HOUSE NO. 5, P.O.
SONKUCHI,P.S. BARPETA, DIST. BARPETA, ASSAM
VERSUS
ABDUL GOFUR MONDAL
SON OF JALAL UDDIN MONDAL
R/O NO. I, BAGHMARA CHAR, P.O. BAGHMARA P.S. ALOPOTTI,
DIST. BARPETA, ASSAM, PIN-781122.
Advocate for the Petitioner : MR. DILIP DEY, MR. T SK
Advocate for the Respondent : ,
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT
Date : 04-08-2025
1. Heard Mr. D. Dey, learned counsel for the petitioner.
2. The petitioner has filed the instant transfer petition under Section 447,
Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 seeking transfer of the
Page No.# 2/6
proceedings of a complaint case, C.R.[N.I.] Case no. 5317 C/2022 from the
Court of learned Judicial Magistrate, First Class, Kamrup [M] at Guwahati to the
Court of learned Chief Judicial Magistrate, Barpeta at Barpeta.
3. The complaint case, C.R.[N.I.] Case no. 5317C/2022 has been instituted
by the respondent herein as the complainant under Section 138 read with
Section 142 of the Negotiable Instrument Act, 1881, as amended, ['the N.I.
Act', for short] stating inter alia that a cheque bearing no. 000035 dated
30.03.2022 drawn for an amount of Rs. 5,00,000/- by the petitioner from an
bank account maintained by him at Ganeshguri Branch of HDFC Bank stood
dishonoured on its presentation for collection by the respondent-complainant at
his Bank, AXIS Bank Ltd., Bharalumukh Branch on the ground of insufficiency of
fund in the account maintained by the petitioner at HDFC Bank, Ganeshguri
Branch. Upon dishonour of the cheque, a legal notice was sent by the
respondent-complainant to the petitioner, on 11.07.2022. It has been averred in
the complaint that the legal notice sent by registered post on 11.07.2022 was
duly delivered to the noticee, that is, the petitioner at his address at Madhurjya
Enclave, House no. 85, near Hatigaon Police Station, P.O. Hatigaon, District -
Kamrup [M], Assam on 15.07.2022. After elapse of the statutory period, the
complaint was filed by the respondent-complainant before the Court of learned
Chief Judicial Magistrate, Kamrup [M] at Guwahati on 26.08.2022. Thereafter,
the complaint case, registered and numbered as C.R.[N.I.] Case no.
5317C/2022, was transferred to the Court of the learned Judicial Magistrate
First Class, Kamrup [M] at Guwahati for disposal. In C.R.[N.I.] Case no.
5317C/2022, the petitioner is the sole accused.
4. The main ground on which the instant transfer petition has been preferred
Page No.# 3/6
by the petitioner is that the petitioner is a Government registered contractor
and is a permanent resident of Barpeta district. The petitioner is involved in
various construction works in Barpeta as well as in the other neighbouring
districts of Barpeta. The petitioner has further averred that the respondent-
complainant is also a resident of Barpeta and it is reflected in the complaint
itself that the respondent is a resident of Baghmara Char, P.O. - Baghmara,
District - Barpeta.
5. Sub-section [2] of Section 142 of the N.I. Act, 1881, as amended, reads
as under :-
[2] The offence under section 138 shall be inquired into and tried only by a court within
whose local jurisdiction,--
[a] if the cheque is delivered for collection through an account, the branch of the
bank where the payee or holder in due course, as the case may be, maintains the
account, is situated; or
[b] if the cheque is presented for payment by the payee or holder in due course,
otherwise through an account, the branch of the drawee bank where the drawer
maintains the account, is situated.
Explanation.-- For the purposes of clause [a], where a cheque is delivered for
collection at any branch of the bank of the payee or holder in due course, then, the
cheque shall be deemed to have been delivered to the branch of the bank in which
the payee or holder in due course, as the case may be, maintains the account.
6. On a combined reading of the provisions contained in Section 142[2] and
Explanation therein, it is clear that with reference to an offence under Section
138 of the N.I. Act, the place where a cheque is delivered for collection, that is,
the branch of the bank of the payee or holder in due course, where the drawee
maintains an account, is determinative of the place of territorial jurisdiction.
Page No.# 4/6
7. The afore-stated position has also been explained in Bridgestone India
Private Limited. Vs. Inderpal Singh, reported in [2016] 2 SCC 75.
8. Section 447 of the BNSS has provided the High Court the power to
transfer cases and appeals. For ready reference, sub-section [1] of Section 447
is quoted hereunder :-
447. Power of High Court to transfer cases and appeals :-
[1] Whenever it is made to appear to the High Court -
[a] that a fair and impartial inquiry or trial cannot be had in any Criminal Court
subordinate thereto; or
[b] that some question of law of unusual difficulty is likely to arise; or
[c] that an order under this section is required by any provision of this Sanhita,
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 197 to 205 [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 to a Court of Session; or
[iv] that any particular case or appeal be transferred to and tried before itself.
9. On a reading of the provisions contained in sub-section [1] of Section 447
of the BNSS, it is evident that the power to transfer cases is exercisable in three
situations :- [a] that a fair and impartial inquiry or trial cannot be had in any
Criminal Court subordinate thereto; or [b] that some question of law of unusual
difficulty is likely to arise; or [c] that an order under this section is required by
any provision of this Sanhita, or will tend to the general convenience of the
parties or witnesses, or is expedient for the ends of justice, it may order-
Page No.# 5/6
10. In the case in hand, the petitioner who has been arraigned as accused in
the complaint case, C.R.[N.I.] Case no. 5317C/2022, had issued the cheque
under reference from an account maintained by him at Ganeshguri Branch of
HDFC Bank. The bank where the cheque was presented by the respondent-
complainant for collection of the cheque amount of Rs. 5,00,000/- was
Bharalumukh Branch, Guwahati of AXIS Bank Ltd. The legal notice issued after
dishonour of the cheque due to insufficiency of fund in the account maintained
by the petitioner was served upon the petitioner's address at Guwahati. In the
complaint, the respondent-complainant has named the witnesses whom the
respondent-complainant would want to bring to adduce evidence on his behalf
in the proceeding of C.R.[N.I.] Case no. 5317 C/2022. Among the listed
witnesses, the respondent-complainant has named himself as one of the
witnesses. Three of the witnesses are officials from HDFC Bank, Ganeshguri
Branch; AXIS Bank Ltd., Bharalumukh Branch; and the Post-Office, Meghdoot
Bhawan, and all these witnesses are from Guwahati, District - Kamrup [M].
11. Having examined the fact situation obtaining in the case in hand vis-à-vis
the provisions contained in Section 142[2], N.I. Act and Section 447, BNSS, this
Court does not find any merit in the contentions advanced by the petitioner.
The conditions contained in Clause [c] of sub-section [1] of Section 447 of the
BNSS are not found to be applicable as most of the witnesses who are likely to
tender evidence in the proceedings of C.R.[N.I.] Case no. 5317 C/2022, are from
Guwahati, District - Kamrup [M]. As the legal notice dated 11.07.2022 was
served upon the petitioner at his Guwahati address, it is not open for the
complainant to allege that there would be inconvenience for him to stand in the
trial of complaint case, C.R.[N.I.] Case no. 5317 C/2022. The petitioner cannot
Page No.# 6/6
urge on behalf of the respondent-complainant that as the respondent-
complainant hails from Barpeta he would face inconvenience to attend the
proceedings of C.R.[N.I.] Case no. 5317 C/2022 at Guwahati because it is the
respondent-complainant who has instituted the proceedings at Guwahati.
12. In the light of the discussion made above and for the reasons assigned
therein, this criminal petition is found to be bereft of any merit and is liable to
be dismissed.
13. Consequently, the instant criminal petition is dismissed.
JUDGE
Comparing Assistant
