9911796707
TMI Blog2025 (3) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... of the court to try the offence under Section 138 N.I. Act. HELD THAT: -This court in the case of Yogesh Upadhaya and Another v. Atlanta Limited [2023 (2) TMI 884 - SUPREME COURT] had the occasion to consider the plea for transfer filed under Section 406 Cr.P.C. in connection with six complaint cases filed under Section 138 and 142 of the N.I. Act respectively. While considering the plea for transfer, the court had the opportunity to consider Section 142(2) contained in the statute book along with Section 142-A. Further, reliance placed on Dashrath Rupsingh Rathod v. State of Maharashtra, [2014 (8) TMI 417 - SUPREME COURT], wherein it was held that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located, i.e., where the cheque is dishonoured upon presentation and not where the complainant's bank is situated. The Court after examining the Statement of Objects and Reasons in the N.I. Amendment Act, 2015, stated that the insertion of Sections 142(2) and 142-A in the N.I. Act was a direct consequence of the judgment in Dashrath Rupsingh Rathod [2014 (8) TMI 417 - SUPREME COURT]. Section 142(2) now makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds raised in the facts and circumstances of each case and exercise its discretion in a circumspect manner while ordering a transfer under Section 406. In Maneka Sanjay Gandhi, it was held that as a general rule, it is the complainant who has the right to choose the forum that has jurisdiction over the subject matter and the courts do not interfere with such a right unless circumstances that hamper the ends of justice are brought to the notice of the court by the other party. Section 142 of the N.I. Act in clear terms, provides the complainant with the right to lodge a complaint, before a court, within whose jurisdiction, the branch of the bank where the cheque is delivered for collection, is situated. Therefore, the argument of the accused that another court might also be empowered to take cognizance of the matter under Section 142, since the cause of action arose within that jurisdiction, cannot by itself be a ground for seeking transfer under Section 406 of the Cr.P.C. A conjoint reading of Section 142(2)(a) along with the explanation thereof, makes the position emphatically clear that, when a cheque is delivered or issued to a person with liberty to present the chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustries pending in the court of Judicial Magistrate Ist Class, Chandigarh (UT) to the court of Metropolitan Magistrate, Coimbatore, Tamil Nadu, essentially on the ground that no cause of action could be said to have arose for the bank to lodge the complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, the N.I. Act) in Chandigarh. 4. In the memorandum of the transfer petition the following has been pleaded: "That the Petitioner herein seeks the transfer to Metropolitan Magistrate Court, Chennai, Tamil Nadu on the following grounds: (a) Because in the facts and circumstance of the present case, the transaction between the Petitioner and the Respondent wholly happened in Coimbatore and the Courts in Coimbatore alone will have the jurisdiction to entertain the present criminal complaint. The Petitioner holds a savings Account in the Respondent's Coimbatore Branch and the loan was also processed in the same branch. All the previous EMI were also deducted from her Bank Account in Coimbatore and credited to the loan account maintained in the Coimbatore Branch. Therefore, the Court in Chandigarh will have no jurisdiction to ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings for the recovery of entire loan amount. The Respondent and its employees have colluded and sold the properties of the Petitioner without any information. The Petitioner has already filed appropriate proceedings against the Respondent in Coimbatore. In the said circumstances, the Criminal Complaint under Section 138 of Negotiable Instruments Act is abuse of process of law." ORDER PASSED BY THIS COURT 5. On 22nd July 2024, this Court passed the following order: "Mr. Nikhil Goel, learned senior counsel appearing for the petitioner submits that the petitioner concern is engaged in the business of producing coconut oil, selling coconut oil and its byproducts and is situated at Coimbatore; that the petitioner availed over-draft limits and terms from the respondent-Bank at its R.S. Puram branch at Coimbatore; that a loan was granted against the equitable mortgage of properties located at Coimbatore and the money was also disbursed at Coimbatore. The learned senior counsel submits that only for the presentation of the cheque the Bank has proceeded to Chandigarh. Issue notice, returnable in four weeks. In the meantime, there shall be stay of further proceedings in Complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is "expedient for the ends of justice" and it is this expression alone which is sought to be invoked by the Petitioner. D. The undisputed facts from Transfer Petition (Crl.) No. 608 of 2024 may kindly be noticed. Some of these facts are recorded in the order issuing notice dated 22.07.2024 - (a) The Petitioner is a proprietorship concern which deals with production and distribution of coconut oil and its byproducts. (b) The Petitioner firm had taken overdraft facility from the Respondent Bank vide sanction letter dated 19.03.2015 (pg. 6 of Crl. MP No. 155078 of 2024). This was extended till 2078. The Bank's correspondence address was recorded Transfer Petition (Crl.) No. 608 of 2024 Page 8 of 87 therein as Egmore, Chennai branch and had nothing to do with Chandigarh. (c) For this overdraft facility, several collaterals in the form of land were taken apart from a lien which was created on a Fixed Deposit of Rs. 25 lakhs. The 11 properties which were taken as collateral are all lands located in the area of Kangeyam in Tiruppur district (bifurcated from the erstwhile Coimbatore district) of Tamil Nadu. (d) The sanction letter also required the Petitioner borrower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s collection account is located in Chandigarh. This stand of the Bank might justify the existence of jurisdiction at Chandigarh but does not answer/explain the reason for filing a complaint there, especially when one set of legal proceedings viz. under SARFAESI Act were undertaken within the jurisdiction of Tamil Nadu. ii. As submitted earlier, this is not an issue pertaining to territorial jurisdiction or an issue of convenience of the accused, but having undertaken all the proceedings including initiation of one set of litigation within Tamil Nadu, it is unjust for the Respondent Bank to choose an unrelated jurisdiction merely because it has an option of more than one places where a complaint can be lodged. iii. The parameters of 'expedient for the ends of justice' should take into account a situation where availability of more than one jurisdiction is misused for no extra benefit to the Complainant. iv. The legislative intent of Section 142A also contemplates that holder in due course is not allowed to misuse the availability of multiple jurisdictions and therefore have consciously used the expression 'transfer' along with 'filed' in Section 142A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower can not only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-a-vis the provisions of the Code of Criminal Procedure." x. For interpreting the phrase "expedient for the ends of justice", it is worthwhile to mention this Hon'ble Court's interpretation of the phrase "justice, equality and good conscience". In M. Siddiq (Ram Janambhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1, this Hon'ble Court traced the origins of the phrase in Roman law. Paragraphs 1000 - 1022 deal with the origin of this phrase and broadly refers to a situation where adherence to written law leads to "Unjust Outcome" (Paragraph 1001). It is this principle, in most humble submission of the Petitioner, which ought to be the basis for Section 406 Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en submissions filed by the respondent Bank read as under: "A. It is submitted that the Respondent is Banking company within the Banking Regulation Act, 1949. On the basis of representations made by the petitioner, the respondent extended credit facilities to the petitioner and its group companies. The petitioners however defaulted on repayments and as of July 2022, owed a sum of more than Rs. 34.14 Cr. to the Respondent. B. The Respondent Bank filed a Complaint under Section 138 of the Negotiable Instrument Act (hereinafter referred to as 'the said Act') in accordance with law before the competent court within whose jurisdiction the branch of the bank where the payee maintains the account is situated. In this regard it is submitted the Cheque was presented at Respondent's Chandigarh Branch for the reason that the routing/collection account in respect of the subject cheque (in a NPA account) was located at Chandigarh. C. Significantly, the petitioner has in its written submissions clarified that it is not disputing the jurisdiction of the court Transfer Petition (Crl.) No. 608 of 2024 Page 16 of 87 where the complaint was filed. In fact, it is the petitioner's contention th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt and moving an application for exemption therein and satisfying the Trial Court regarding the necessity of such exemption, the Petitioner has directly approached this Hon'ble Court. G. It is submitted that the cheque bouncing cases filed by the respondent in Chandigarh were prior in time to the original application filed before the DRT, Coimbatore. H. It is further submitted that there are a batch of cases pending in Chandigarh. The Respondent has filed all cases arising out of the transaction at one single place viz Chandigarh. Thus, no inconvenience could have been caused to the Petitioner. I. It is further submitted that there are various cases pending at Chandigarh District Court arising out the same transaction in which no Transfer Petition has been filed. It is submitted that there are 23 cases pending in Chandigarh out of which the transfer petition has been filed by the petitioner only in the present batch of cases and in two more cases. To the best of knowledge of the respondent, no other transfer petition has been filed in the other connected cases. A list of the cases pending in Chandigarh court are annexed herewith and marked as Annexure -A (Page No. 6 to 7). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermissible for this court in exercise of powers under Section 406 of the Cr.P.C. to transfer the said complaint to the court having territorial jurisdiction to try the offence? iii. Whether the expression "that for the ends of justice, this Court can transfer any criminal case or appeal to any place." in Section 406 Cr.P.C. embraces in itself the lack of territorial jurisdiction of the court to try the offence under Section 138 N.I. Act? 12. Before adverting to the rival submissions canvassed on either side, we must look into a few relevant provisions of the N.I. Act. Section 138 of the N.I. Act reads thus: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 14. Section 142-A of the N.I. Act provides for validation for transfer of pending cases. Section 142-A reads thus: "Validation for transfer of pending cases.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court observed that the return of the cheque by the drawee bank would alone constitute commission of the offence under Section 138 of the Act of 1881 and would indicate the place where the offence is committed. It was, therefore, held that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located, i.e., where the cheque is dishonoured upon presentation and not where the complainant's bank is situated. 8. In this regard, it may be noted that Section 142 of the Act of 1881, titled 'Cognizance of Offences', provided that, notwithstanding anything contained in the Criminal Procedure Code, 1973, no Court shall take cognizance of an offence punishable under Section 138 except on a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque; such complaint is made within one month of the date on which the cause of action arises under clause I of the proviso to Section 138; and no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try an offence punishable under Section 138. 9. Significantly, the aforestated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endorsed that Section 142(2)(a) of the Act of 1881 vests jurisdiction for initiating proceedings for an offence under Section 138 in the Court where the cheque is delivered for collection, i.e., through an account in the branch of the bank where the payee or holder in due course maintains an account. This Court also affirmed that Dashrath Rupsingh Rathod (supra) would not non-suit the company in so far as territorial jurisdiction for initiating proceedings under Section 138 of the Act of 1881 was concerned." ( Emphasis supplied ) 17. In Yogesh Upadhaya (Supra), this Court also considered the effect of the non obstante clause in Section 142(1) of the N.I. Act so as to examine whether the same would override Section 406 Cr.P.C. In this regard the court observed thus: "13. Therefore, institution of the first two complaint cases before the Courts at Nagpur is in keeping with the legal position obtaining now. However, the contention that the non obstante clause in Section 142(1) of the Act of 1881 would override Section 406 Cr. P.C. and that it would not be permissible for this Court to transfer the said complaint cases, in exercise of power thereunder, cannot be countenanced. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferred to the Dwarka Courts at New Delhi." 18. Thus, in Yogesh Upadhaya (supra), this Court took note of K. Bhaskaran v. Sankaran Vaidhyan Balan reported in (1999) 7 SCC 510, wherein it was held that an offence under Section 138 of the N.I. Act has five components: (i) drawing of the cheque, (ii) presentation of the cheque to the bank, (iii) returning of the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and (v) failure of the drawer to make payment within 15 days of the receipt of the notice. 19. It was further held that the jurisdiction to deal with the case vests in the Court having jurisdiction over the territorial limits wherein any of the five acts referred to above that constitute the components of the offence, occurred. If the five acts were done in five different areas, then any one of the Courts exercising jurisdiction in those five areas would have jurisdiction and the complainant could choose any one of those Courts. 20. Further, it relied on Dashrath Rupsingh Rathod v. State of Maharashtra, reported in (2014) 9 SCC 129, wherein it was held that the place, situs or venue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the amendments in the year 2015, along with Section 142(2). The non obstante clause merely has reference to the manner in which cognizance is to be taken in an offence under Section 138. The same must not be construed to mean that the power of this Court to transfer pending criminal proceedings under Section 406 CrPC stands abrogated thereby in respect of an offence under Section 138 of the NI Act. 26. After placing reliance on A.E. Premanand v. Escorts Finance Ltd., reported in (2004) 13 SCC 52, the Court had held that notwithstanding the non obstante clause in Section 142(1) of the NI Act, the power of this Court to transfer criminal cases under Section 406 Cr.P.C. remains intact in relation to an offence under Section 138 of the N.I. Act, if it is found expedient for the ends of justice to order such transfer. 27. Before we proceed further it is necessary to clarify that in Yogesh Upadhaya (supra) this Court was dealing with the transfer of six complaint cases under Sections 138 and 142 of the N.I. Act. Ultimately, considering Section 142(2) along with Section 142-A of the N.I. Act, this Court held that two out of six complaints instituted at Nagpur were in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27(1) of the old CrPC) clearly implies that it is only the Supreme Court that has the power to transfer a case pending in a Court subordinate to one High Court to be tried by a Court subordinate to another High Court. 31. A case is transferred by virtue of the powers under Section 406 if there is a reasonable apprehension on the part of a party to a case that justice will not be done. There, however, must be reliable material from which it can be inferred that there are impediments that are interfering or likely to interfere, either directly or indirectly, with the cause of justice. POSITION OF LAW 32. In Kaushik Chatterjee v. State of Haryana and Ors. reported in (2020) 10 SCC 92, this Court, in an identical situation like the one on hand, held as under: "8. Thus, in effect, transfer is sought primarily on two grounds, namely, (i) lack of territorial jurisdiction and (ii) apprehension of bias. xxx xxx xxx 17. As seen from the pleadings and the rival contentions, the petitioner seeks transfer, primarily on the ground of lack of territorial jurisdiction. While the question of territorial jurisdiction in civil cases, revolves mainly around (i) cause of action; or (ii) loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding the jurisdiction of criminal courts in inquiries and trials can be summarised in simple terms as follows: 20.1. Every offence should ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. This rule is found in Section 177. The expression "local jurisdiction" found in Section 177 is defined in Section 2(j) to mean "in relation to a court or Magistrate, means the local area within which the court or Magistrate may exercise all or any of its or his powers under the Code". 20.2. In case of uncertainty about the place in which, among the several local areas, an offence was committed, the Court having jurisdiction over any of such local areas may inquire into or try such an offence. 20.3. Where an offence is committed partly in one area and partly in another, it may be inquired into or tried by a court having jurisdiction over any of such local areas. 20.4. In the case of a continuing offence which is committed in more local areas than one, it may be inquired into or tried by a court having jurisdiction over any of such local areas. 20.5. Where an offence consists of several acts done in different local areas it may be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.15. Some offences relating to marriage such as Section 494 IPC (marrying again during the lifetime of husband or wife) and Section 495 IPC (committing the offence under Section 494 with concealment of former marriage) may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the offender last resided with the spouse by the first marriage. (Nos. 13 to 15 are found in Section 182) 20.16. An offence committed in the course of a journey or voyage may be inquired into or tried by a court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage. (Section 183). 20.17. Cases falling under Section 219 (three offences of the same kind committed within a space of twelve months whether in respect of the same person or not), cases falling under Section 220 (commission of more offences than one, in one series of acts committed together as to form the same transaction) and cases falling under Section 221, (where it is doubtful what offences have been committed), may be inquired into or tried by any court competent to inquire into or try any of the offences. (Section 184). 21. Apart from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss it appears that such error has in fact occasioned a failure of justice." 25. A cursory reading of Sections 461(l) and 462 gives an impression that there is some incongruity. Under clause (l) of Section 461 if a Magistrate not being empowered by law to try an offender, wrongly tries him, his proceedings shall be void. A proceeding which is void under Section 461 cannot be saved by Section 462. The focus of clause (l) of Section 461 is on the "offender" and not on the "offence". If clause (l) had used the words "tries an offence" rather than the words "tries an offender", the consequence might have been different. 26. It is significant to note that Section 460, which lists out nine irregularities that would not vitiate the proceedings, uses the word "offence" in three places, namely, clauses (b), (d) and (e). Section 460 does not use the word "offender" even once. 27. On the contrary Section 461 uses the word "offence" only once, namely, in clause (a), but uses the word "offender" twice, namely, in clauses (l) and (m). Therefore, it is clear that if an offender is tried by a Magistrate not empowered by law in that behalf, his proceedings shall be void under Section 461. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code and the 1973 Code is that the question of jurisdiction dealt with by Sections 28 and 29 of the 1898 Code and Section 26 of the 1973 Code, is relatable only to the offence and not to the offender. The power of a court to try an offence is directly governed by clauses (a) and (b) of Section 26 of the 1973 Code, as it was governed by Sections 28 and 29 of the 1898 Code. 32. In other words, the jurisdiction of a criminal court is normally relatable to the offence and in some cases, to the offender, such as cases where the offender is a juvenile (Section 27) or where the victim is a women [the proviso to clause (a) of Section 26]. But Section 461(l) focuses on the offender and not on the offence. 33. The saving clause contained in Section 462 of the 1973 Code is in pari materia with Section 531 of the 1898 Code. In the light of Section 531 of the 1898 Code, a question arose before the Calcutta High Court in Ramnath Sardar v. Rekharani Sardar [Ramnath Sardar v. Rekharani Sardar, 1975 SCC OnLine Cal 168 : 1975 Cri LJ 1139] , as to the stage at which an objection to the territorial jurisdiction of the court could be raised and considered. In that case, the objection to the terri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed ... and the convenience of the witnesses who have to appear before the Court". (SCC p. 194 para 7) 36. After making such a distinction between two different types of jurisdictional issues, this Court concluded in that case, that where a Magistrate has the power to try a particular offence, but the controversy relates solely to his territorial jurisdiction, the case would normally be covered by the saving clause under Section 531 of the 1898 Code (present Section 462 of the 1973 Code). 37. From the above discussion, it is possible to take a view that the words "tries an offence" are more appropriate than the words "tries an offender" in Section 461(l). This is because, lack of jurisdiction to try an offence cannot be cured by Section 462 and hence Section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of Section 462, provided there is no other bar for the court to try the said offender (such as in Section 27). But Section 461(l) makes the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offender. But the main difference between the question of jurisdiction raised in civil cases and the question of jurisdiction arising in criminal cases, is two-fold i.e.: CIVIL COURT CRIMINAL COURT The stage at which an objection as to jurisdiction, territorial or pecuniary, can be raised, is regulated in civil proceedings by Section 21 of the Code of Civil Procedure, 1908. There is no provision in the Criminal Procedure Code akin to Section 21 of the Code of Civil Procedure. In civil proceedings, a plaint can be returned, under Order VII, Rule 10, CPC, to be presented to the proper court, at any stage of the proceedings But in criminal proceedings, a limited power is available to a Magistrate under section 201 of the Code, to return a complaint. The power is limited in the sense that: But in criminal proceedings, a limited power is available to a Magistrate under section 201 of the Code, to return a complaint. The power is limited in the sense that: 1. it is available before taking cognizance, as section 201 uses the words "Magistrate who is not competent to take cognizance" 2. the power is limited only to complaints, as the word "complai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence cannot be cured by section 462 and hence section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. 41. In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of section 462, provided there is no other bar for the court to try the said offender (such as in section 27). But Section 461 (l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do. 42. Thus, in the aforesaid case, this Court declined to transfer the matter having noticed that the case was one of territorial jurisdiction. In such circumstances, this Court left it open to both the parties, i.e., the accused and the complainant to raise the issue of territorial jurisdiction before the court concerned. 43. In the case of United States v. National City Lines, reported in 337 U.S. 78, the U.S. district court of the southern district of California observed thus: "The Discretionary Power to Transfer: There remains the question: Do the facts warrant the granting of the motion? A Conditions fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange while the matter was before the Supreme Court. It is the same as existed when I granted the motion to dismiss. The affidavits filed with the prior motion have been refiled and adopted for the purposes of the present motions. The Government has filed no additional affidavits. But it was agreed at the hearing that the additional facts contained in the affidavit of Jesse R. O'Malley, one of counsel for the Government, in opposition to the affidavit of Denis B. Sullivan, filed in opposition to the Government's motion for an early trial date, might be considered. The affidavit merely recites that a transfer to the Northern District of Illinois, Eastern Division, might result in delay because of the crowded condition of the calendar of that court. It points to the fact that the transfer of the criminal case had resulted in delay. Speculations as to possible time of trial are not determinative of the matter. Regardless of the condition of their calendars, district courts have it within their power to advance cases when public interest so requires. And if the need for immediate action is brought home to the judges of the District Court of Illinois, I am certain that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing in this case warrants transfer to the Northern District of Illinois, Eastern Division." ( Emphasis supplied ) 44. In Bhiaru Ram & Ors. v. Central Bureau of Investigation & Ors reported in (2010) 7 SCC 799 this Court observed thus: "7. Section 406 of the Code of Criminal Procedure empowers this Court to transfer any case or appeal from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court. We are concerned about sub-section (1) of Section 406 which reads as under: "406. Power of Supreme Court to transfer cases and appeals.- (1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court." 8. It is clear from the abovesaid provision that for the ends of justice, this Court can transfer any criminal case or appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med this Court that the petitioners are willing to attend the proceedings at Delhi, if the case is transferred to Special Court, CBI, Delhi. 11. Mr. H.P. Raval, learned Additional Solicitor General, after taking us through specific averments made in the counteraffidavit filed on behalf of Respondents 1 and 2 (CBI), submitted that the main accused Shri B.R. Meena is a very influential person in the State of Rajasthan and there is strong apprehension that due to influence of Shri B.R. Meena, there would be no fair trial at Jaipur or any other place in the State of Rajasthan. He also pointed out that the Court of Special Judge, CBI at Greater Mumbai has ample jurisdiction to try this case because various movable properties have been found in Mumbai and the main accused, Shri B.R. Meena, was posted in Mumbai from 2001 to the end of the check period i.e. 4-10-2005 and this is the period during which most of the properties were allegedly acquired by him and his family members. 12. We have already adverted to the fact that against the main accused Shri B.R. Meena, (IRS 1977), Commissioner of Income Tax, Income Tax Appellate Tribunal, Mumbai, a case has been registered on 29-9-2005 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited reported in 2021 SCC OnLine SC 378 this Court observed thus: "5. Now the petitioner wants the criminal case pending in the Salem Court to be transferred to the Patiala House Court, New Delhi. Two main grounds have been urged on behalf of the petitioner in support of his plea, argued by Mr. S. Guru Krishnakumar, learned Senior Advocate. One is that the points involved in the criminal case are similar to the suits which are being tried and determined by the Delhi High Court. The other ground taken is that the proceeding in the Salem Court is being conducted in Tamil, which the petitioner does not understand. It has also been urged on behalf of the petitioner that it would be more convenient for the parties to conduct the proceeding in New Delhi as the civil suits are being heard in the Delhi High Court only. The petitioner also complains about distance of over 2000 kilometres between Salem and petitioner's own place of residence at Indore and alleges that there is no direct connectivity between these two places. The authorities relied upon by the petitioner are (i) Sri Jayendra Saraswathy Swamigal (II), T.N. v. State of Tamil Nadu [(2005) 8 SCC 771] and Mrudul M. Damle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll have to proceed in the Court of Judicial Magistrate and not in the High Court where the civil suits are being heard. Two different judicial fora would be hearing the civil cases and the criminal case. Whether the civil cases and the criminal case would continue together or not is not a question which falls for determination in this Transfer Petition. Moreover, it does not appear that earlier any complaint was made about the proceeding being carried on at Salem. In fact, the petitioner had applied for quashing the complaint before the Madras High Court but at that point of time, no proceeding was taken out for transferring the criminal complaint. Moreover, on 8th June 2018, the petitioner had appeared before the Salem Court and received copy of the criminal complaint. This has been stated in the list of dates forming part of the Transfer Petition. At that point of time, the two earlier Transfer Petitions were pending. Those two petitions were disposed of on 18th July 2018. The petitioner does not appear to have had expressed their grievances on the basis of which this petition has been filed at that point of time. Barring claims being made by the petitioner of the respondents bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Section 406 of the 1973 Code. Jurisdiction under the aforesaid provision ought to be sparingly used, as held in the case of Nahar Singh Yadav v. Union of India [(2011) 1 SCC 307]. Such jurisdiction cannot be exercised on mere apprehension of one of the parties that justice would not be done in a given case. This was broadly the ratio in the case of Gurcharan Dass Chadha (supra). In my opinion if a Court hearing a case possesses the jurisdiction to proceed with the same, solely based on the fact that one of the parties to that case is unable to follow the language of that Court would not warrant exercise of jurisdiction of this Court under Section 406 of the 1973 Code. Records reveal that aid of translator is available in the Salem Court, which could overcome this difficulty. If required, the petitioner may take the aid of interpreter also, as may be available. 10. The petitioner's plea for transfer is based primarily on convenience. But convenience of one of the parties cannot be a ground for allowing his application. Transfer of a criminal case under Section 406 of the 1973 Code can be directed when such transfer would be "expedient for the ends of justice". This expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia & Ors. reported in (2011) 1 SCC 307, this Court observed thus: "22. It is, however, the trite law that power under Section 406 CrPC has to be construed strictly and is to be exercised sparingly and with great circumspection. It needs little emphasis that a prayer for transfer should be allowed only when there is a well-substantiated apprehension that justice will not be dispensed impartially, objectively and without any bias. In the absence of any material demonstrating such apprehension, this Court will not entertain application for transfer of a trial, as any transfer of trial from one State to another implicitly reflects upon the credibility of not only the entire State judiciary but also the prosecuting agency, which would include the Public Prosecutors as well." ( Emphasis supplied ) 47. It follows from the above-mentioned exposition of law that transfer of cases under Section 406 Cr.P.C. may be allowed when there is a reasonable apprehension backed by evidence that justice may not be done and mere convenience or inconvenience of the parties may not by itself be sufficient enough to pray for transfer. The court has to appropriately balance the grounds raised in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of transfer of trial is not to be passed as a matter of routine and more particularly on the plea of lack of territorial jurisdiction of the court to try the offence under Section 138 of the N.I. Act. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are: (i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution; (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant; (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and non-official witnesses; (iv) a communally surcharged atmosphere, indicating some proof of inability in holding a fair an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Yakub Abdul Razak Memon v. State of Maharashtra, reported in (2013) 13 SCC 1 wherein it has been held that: "1551. While dealing with such an issue, the court must not lose sight of the fact that meaning of "ends of justice" essentially refers to justice to all the parties. This phrase refers to the best interest of the public within the four corners of the statute. In fact, it means preservation of proper balance between the Constitutional/statutory rights of an individual and rights of the people at large to have the law enforced. The "ends of justice" Transfer Petition (Crl.) No. 608 of 2024 Page 73 of 87 does not mean vague and indeterminate notions of justice, but justice according to the law of the land." ( Emphasis supplied ) 53. The expression "ends of justice" has been more elaborately elucidated in context of procedural law in the decision of this Court in Mahadev Govind Gharge v. LAO, reported in (2011) 6 SCC 321, wherein it was held that: "29. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold. We have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, we must try to understand what cause of action means. A Court gets jurisdiction over the matter if the cause of action arises within the local limits of its jurisdiction. Cause of action means: "the whole bundle of material facts which it is necessary for the plaintiff to prove in order to entitle him to succeed in the suit." To ascertain whether the bundle of facts give rise to the cause of action and to determine whether one or more of those facts had occurred within the territorial jurisdiction of the Court, the entire plaint needs to be looked into and taken into consideration. In the decision rendered in State of Madras v. C.P. Agencies reported in AIR 1960 SC 1309, this Court has quoted with approval the following observations made in Mst. Chand Kour v. Pratab Singh reported in 15 Indian Appeals 156: " Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled right from the decision in Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality reported in (1969) 2 SCC 283 : AIR 1970 Supreme Court 192 that Legislation can take away the basis of a judgment. 3. The Honourable Supreme Court in Dashrath Rupsingh Rathod (supra) summed up the law relating to the place of suing as under: "56. To sum up: (i) An offence under Section 138 of the Negotiable Instruments Act, 1881 is committed no sooner a cheque drawn by the accused on an account being maintained by him in a bank for discharge of debt/liability is returned unpaid for insufficiency of funds or for the reason that the amount exceeds the arrangement made with the bank. (ii) Cognizance of any such offence is however forbidden under Section 142 of the Act except upon a complaint in writing made by the payee or holder of the cheque in due course within a period of one month from the date the cause of action accrues to such payee or holder under clause (c) of proviso to Section 138. (iii) The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if (a) the dishonoured cheque is presented to the drawee bank within a peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "a cheque in the electronic form" means a cheque drawn in electronic form by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system or with electronic signature, as the case may be; (ii) after Explanation II, the following Explanation shall be inserted, namely:- 'Explanation III.-For the purposes of this section, the expressions "asymmetric crypto system", "computer resource", "digital signature", "electronic form" and "electronic signature" shall have the same meanings respectively assigned to them in the Information Technology Act, 2000.'. 3. In the principal Act, section 142 shall be numbered as sub-section (1) thereof and after sub-section (1) as so numbered, the following sub-section shall be inserted, namely:- "(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nything done or any action taken under the principal Act, as amended by the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of the principal Act, as amended by this Act." 5. By virtue of the said amendment, the entire basis of the judgment of Dashrath Rupsingh Rathod (supra) has been removed. The power of the Legislature to take away the basis of a judgment by making amendments is well settled. It is trite law that the Legislature can take away the basis of the judgment of a judicial pronouncement by either passing a Validating Act or passing amendments to the parent Act. [Refer. State of Karnataka v. Karnataka Pawn Brokers Association reported in (2018) 6 SCC 363; State of Transfer Petition (Crl.) No. 608 of 2024 Page 83 of 87 Karnataka v. Pro Lab reported in (2015) 8 SCC 557; Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality reported in (1969) 2 SCC 283 : AIR 1970 Supreme Court 192; Gujarat Ambuja Cements v. Union of India reported in (2005) 4 SCC 214; State Bank's Staff Union (Madras Circle) v. Union of India reported in (2005) 7 SCC 584] 6. In view of the above, there is no infirmity in the amendment. Even othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have arisen within Chandigarh, is of no avail to them, more particularly when the law itself allows the institution of a complaint in Chandigarh. The enactment of sub-section (2)(a) of Section 142 of the N.I. Act and the Explanation thereto allows the complainant to file a complaint before the courts within whose jurisdiction the collection branch of the bank falls. In the present case, while contending that the court in Chandigarh lack the jurisdiction to entertain the case, it is not the case of the petitioner that the respondent Bank has no collection branch in Chandigarh. 64. The argument canvassed on behalf of the petitioner that although the Court in Chandigarh has the territorial jurisdiction to try the case under Section 138 of the N.I. Act yet as the Court in Delhi also has the territorial jurisdiction to try the case, the proceedings deserve to be transferred to the Court in Delhi to take care of two situations for the petitioner (i) language barrier and (ii) convenience. 65. For the purpose of transfer of any case or proceedings under Section 406 of the Cr.P.C., the case must fall within the ambit of the expression "expedient for the ends of justice". Mere inconven ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
