Punjab-Haryana High Court
Kapil Batra Productions And Anr vs Gurpreet Singh And Anr on 19 October, 2024
Neutral Citation No:=2024:PHHC:136894
CRM-M-46486-2023 (O&M)and one connected case -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
1. CRM-M-46486-2023 (O&M)
Kapil Batra Production and another ...Petitioners
Versus
Gurpreet Singh and another ...Respondents
2. CRM-M-38574-2024 (O&M)
Rajan Batra and another ...Petitioners
Versus
Gurpreet Singh ...Respondent
Date of decision : 19.10.2024
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. Pranav Handa, Advocate
for the petitioners.
Mr. Amit Dhawan, Advocate
for respondent-Gurpreet Singh.
MANISHA BATRA, J. (Oral)
1. This common order shall dispose of above mentioned two
petitions as they are similar in nature and seek similar relief.
2. Thesepetitions have been filed under Section 407 of Cr.P.C. by
the petitioners Kapil Batra and Rajan Batra, who are real brothers, seeking
transfer of complaint bearing No. NACT/2049/2020, titled as Gurpreet Singh
vs. Kapil Batra Productions and another as well as complaint bearing
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No. NACT/2050/2020, titled as Gurpreet Singh vs. Bear Bull Share Broker
and another, filed by respondent/complainant Gurpreet Singh under Section
138 of the Negotiable Instruments Act, 1881 (for short 'N. I. Act'), from the
Court of learned Judicial Magistrate First Class, Jalandhar to any other Court
of competent jurisdiction.
3. The brief facts relevant for the purpose of disposal of these
petitions are that petitioners Kapil Batra and Rajan Batra and their respective
firms are facing trial in the aforesaid complaints filed under Section 138 of N.
I. Act by respondent/complainant Gurpreet Singh with the allegations that they
had taken a loan of Rs. 20 Lakhs and Rs. 04 Lakhs, respectively, from him in
the year 2020 as financial help with an assurance to return the same shortly.
Petitioner Kapil Batra had even executed a pronote on 27.02.2020 in this
regard in favour of the complainant. In order to discharge their liability,
petitioner Kapil Batra had issued two cheques of Rs. 10 Lakhs each in favour
of the complainant, whereas petitioner Rajan Batra had issued one cheque of
Rs. 04 Lakhs to the complainant, which on presentation before the concerned
bank, were dishonoured due to 'insufficient funds', resulting to filing of
aforesaid complaints. Both the complaints are pending before the trial Court,
presided over by learned Judicial Magistrate First Class, Jalandhar.
4. It is alleged by the petitioners that the Presiding Officer is
conducting the proceedings of the aforesaid complaint in a biased manner
which is reflected from the fact that as on 11.05.2023, the
respondent-complainant had summoned one witness from Yes Bank who
appeared as CW-1 and was examined in chief. At the time of recording his
statement though certain documents were exhibited but the exhibit numbers
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were not put. During cross-examination of the said witness, some time was
sought by him to bring some documents from the Bank. This request was
allowed by the Court and then the witness left the Court with the same
documents which had been exhibited before the Court. This fact was brought
to the notice of the trial Magistrate when the petitioners were directed to
conduct cross-examination of the said witness and objection was raised. The
Magistrate after questioning the witness and even after knowing that he had
taken the exhibited documents with him, had still recorded the statement of the
witness thereby showing bias against the petitioners.
5. It is further submitted that the petitioners had moved an
application for transfer of the complaint from the Court of the concerned
Magistrate to some other Court and during the pendency of that application
also, the Court proceeded to record the statement of the witness summoned by
the complainant. On 16.05.2023, the concerned Magistrate had passed adverse
remarks against the petitioners and recorded proceedings behind their back.
The adverse remarks have been wrongly made as against them. The petitioners
do not expect justice from the concerned Court. Therefore, prayer has been
made by them to transfer the aforementioned complaint to some other Court of
competent jurisdiction.
6. Per contra, learned counsel for the respondent-complainant has
argued that the allegations as levelled by the petitioners against the learned
trial Magistrate are false and these petitions have been filed only with a view to
abuse the process of the Court and to harass the respondent. Petitioner Kapil
Batra, by taking advantage of the fact that he is a lawyer by profession, has
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been levelling false allegations against the concerned Magistrate. In fact, he
has been trying to delay the proceedings conducted by the Magistrate by
adopting one means or the other. It is, thus, prayed that the petitions deserve to
be dismissed.
7. I have heard learned counsel for the parties at considerable length
and have also gone through the material placed on record.
8. Before delving into the present case, let us have a glance on the
provisions of Section 407 of Cr.P.C., which read as under:
407. 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 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 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
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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.
(3) Every application for an order under sub section (1) shall
be made by motion, which shall, except when the applicant is
the Advocate General of the State, be supported by affidavit or
affirmation.
(4) When such application is made by an accused person, the
High Court may direct him to execute a bond, with or without
sureties, for the payment of any compensation which the High
Court may award under subsection (7).
(5) Every accused person making such application shall give to
the Public Prosecutor notice in writing of the application,
together with copy of the grounds on which it is made; and no
order shall be made on of the merits of the application unless at
least twenty four hours have elapsed between the giving of
such notice and the hearing of the application.
(6) Where the application is for the transfer of a case or appeal
from any subordinate Court, the High Court may, if it is
satisfied that it is necessary so to do in the interests of justice,
order that, pending the disposal of the application, the
proceedings in the subordinate Court shall be stayed, on such
terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's
power of remand under section 309.
(7) Where an application for an order under sub section (1) is
dismissed, the High Court may, if it is of opinion that the
application was frivolous or vexatious, order the applicant to
pay by way of compensation to any person who has opposed
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the application such sum not exceeding one thousand rupees as
it may consider proper in the circumstances of the case.
(8) When the High Court orders under subsection (1) that a
case be transferred from any Court for trial before itself, it
shall observe in such trial the same procedure which that Court
would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order
of Government under section 197."
9. A careful perusal of the aforesaid provisions would show that this
Court can exercise the power of transfer where a fair and impartial inquiry or
trial cannot be conducted in any criminal Court subordinate thereto or some
question of law of unusual difficulty is likely to arise or 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 securing the ends of
justice, it may order 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; 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;
any particular case be committed for trial to a Court of Session; or any
particular case or appeal be transferred to and tried before itself.
10. Hon'ble Supreme Court in the matter of Chadha v. Asha
Kumari and another : 2012 (1) RCR (Criminal) 94 has held that if an order is
passed transferring the trial merely on the sayso of a party, it will have a
demoralizing effect on the trial courts and further held that that unless a very
strong case based on concrete material is made out, such transfers should not
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be ordered. Further in Dass Chadha v. State of Rajasthan : AIR 1966 SC
1418, it was has held that transfer of trials should not be ordered merely on the
basis of apprehension but there must be a reasonable apprehension. 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. The 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 suffice. The Court has further to see whether the
apprehension is reasonable or not? In order to judge 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 imaginary but must appear to the Court to be a reasonable
apprehension.
11. Similar view was taken by Hon'ble Supreme Court in Nazar
Madani v. State of T.N. and another : 3 (2000) 6 SCC 204, wherein it is held
that 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
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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. However,
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
petitioner 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. Similar ratio of law has been laid down by Hon'ble Supreme Court in
Capt. Amarinder Singh v. Prakash Singh Badal and others : (2009) 6 SCC
260.
12. In the case of Adambhai Vahora v. State of Gujarat and
another : (2016) 3 SCC 370, Hon'ble Supreme Court has held that seeking
transfer at the drop of a hat is inconceivable. An order of transfer is not to be
passed as a matter of routine or merely because an interested party has
expressed some apprehension about proper conduct of the trial. The power has
to be exercised cautiously and in exceptional situations, where it becomes
necessary to do so to provide credibility to the trial. There has to be a real
apprehension that there would be miscarriage of justice.
13. Now reverting to the facts of the present case in view of the ratio
of law as laid down in the aforecited judgments. The main ground for seeking
transfer of the aforesaid complaints, pending before the Court of learned
Judicial Magistrate First Class, Jalandhar, as taken by the petitioners, is that
they are not expecting justice from the Court concerned in view of the fact that
while conducting proceedings of the complaints, the Magistrate concerned had
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ignored the fact that one witness summoned by the complainant had left the
Court during lunch time on 11.05.2023 while taking the documents already
produced in evidence before the Court and on pointing out this fact to the
Court, the Magistrate did not take any action against the said witness.
Petitioner Kapil Batra is also aggrieved of the fact that one pronote, which was
an important document and was on the case file, was found to be missing from
the record at the time of when the evidence of the complainant was being
recorded and despite the objection being raised by the petitioner/his counsel,
the Magistrate did not take any action and the said document was tendered in
evidence behind his back.
14. On perusal of the record, it is revealed that the petitioners had
moved application for transfer of the aforementioned complaint(s) firstly
before the Magistrate and then before the learned District Judge, Jalandhar. A
perusal of order dated 27.03.2024, passed by the learned District Judge,
Jalandhar, reveals that it was observed therein that the petitioners had been
making contradictory allegations for the purpose of getting the case
transferred. They had also filed a transfer application against one more
Magistrate on 17.01.2022 by levelling frivolous allegations. It was further
observed that the petitioners had been trying to delay the proceedings.
15. The grounds which have been taken by the petitioners for seeking
transfer of the complaints are not at all convincing and do not inspire any
confidence for transfer of the cases as prayed for. Mere apprehension
expressed by the petitioners is not sufficient for transferring the cases as the
power under Section 407 of Cr.P.C. has to be exercised cautiously and in
exceptional situations, where it becomes necessary to do so to provide
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credibility to the trial. However, nothing of that sort has been placed on record
or has been shown to this Court by the petitioners so as to arrive at a
conclusion that the apprehension of the petitioners is reasonable and there are
chances that justice will not be done to them. If the prayer of the petitioners is
accepted, that too on these feeble and unreasonable grounds, it will surely
demoralize the morale of the trial Court. The unsubstantiated paranoia of
ultra-conscious litigants and their illegitimate apprehensions cannot constitute
a legitimate ground to transfer the cases from one Court to another. This Court
expresses its implicit faith in the trial Court, which would surely arrive at a just
decision in accordance with law, reducing the allegations made by the
petitioners to nothing but some sort of pressure tactics.
16. In view of the discussion made above and also in view of the ratio
of law as laid down in aforecited judgments, but without making any comment
on the merits of the case, the present petitions are dismissed.
17. Since the main petitions stand dismissed, pending applications, if
any, shall also be treated as disposed of.
18. Let a photocopy of this order be placed on the file of the
connected case.
19.10.2024 (MANISHA BATRA)
Waseem Ansari JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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