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2001 DIGILAW 564 (PAT)

Syed Enayat Hussain v. State of Bihar

2001-07-10

S.K.CHATTOPADHYAYA

body2001
ORDER Heard Mr. Y.V. Giri, learned senior counsel for the petitioner, Mrs. Anjana Prakash on behalf of the opposite party no.2 and Mr. S.D. Yadav, learned Government Advocate on behalf of the State. Invoking the jurisdiction of the Writ Court under Article 226 of the Constitution the petitioner has prayed for amalgamation of two criminal cases pending before two different districts. As the prayer of the petitioner is very limited, facts of the case need not be stated in detail. It is suffice to mention that on the allegation of dishonour of 14 cheques deposited in Bank at Patna and at Aurangabad different complaints were filed both at Patna and Aurangabad. It is alleged in the complaint petition that assurance was given by the accused for getting admission of one of the sons of the complaint in the Sawi Man Singh Medical College and Hospital, where there is some quota of the governor and the accused had some approach and son of the complaint can be admitted in the said Medical college on either Governor's quota or Trustee's quota. However condition was that complainant would be agreeable to pay Rs. 3,45,000/- for the purpose. The complainant being induced paid the said amount on 27.12.94 but when found that nothing was done for his son and when the complainant wanted to know about further development for admission of his son, again assurance was givne that he will be admitted and there is progress in the work. However, when time expired for such admission, the complainant again approached the accused but they evaded to meet with him or his representatives and son. He also approached the petitioner and made complain but without any result. Ultimately the eldest son of the complainant, however, could meet the accused in August, 1995 and on persuation 14 cheques of different dates in the name of complainant were handed over to the son. Letter was sent to the younger brother of the complainant admitting to have issued those cheques and further it was stated that it the accused could manage the amount he shall pay the amount to the complainant on return of the cheques. Letter to this effect dated 18.5.95 has been annexed in the complaint petition. Letter was sent to the younger brother of the complainant admitting to have issued those cheques and further it was stated that it the accused could manage the amount he shall pay the amount to the complainant on return of the cheques. Letter to this effect dated 18.5.95 has been annexed in the complaint petition. Two cheques were deposited in the Central Bank of India Aurangabad Branch but after some dates those two cheques were returned with an endorsement of non-availability of funds in the account of the accused. Legal notice was sent to the accused but when no reply was received the complaint filed the case before the Chief Judicial Magistrate, Aurangabad on 15.10.97 which was registered as Complaint Case No. 658 of 1997. The remaining cheques Similarly were deposited by the complainant in Canara Bank, Kadam Kuan Branch, Patna, but those cheques were returned with the same endorsement. The complainant approached the accused but the accused avoided to make payment on some pretext of other. Six months time of validity of cheques expired and the complainant did not deposit the same in the Bank. The cheques, however, were placed in the Bank. According to the complainant those two cheques were placed in the Patna Banch, Again cheques were dishonoured. After legal notice when the accused did not respond, the petitioner filed a complaint petition being Complaint Case No. 50(c) of 1997 in the court of Chief Judicial Magistrate, Patna. Cognizance of the offence in Patna case was taken under Sections 406 and 420 of the Penal Code read with Section 138 of the Negotiable Instrument Act. The complaint was filed at Patna on 10.1.1997 and cognizance was taken on 09.4.97. These two complaints have been annexed as Annexures 3 and 1 respectively. Mr. Giri, learned senior counsel for the petitioner contends that under Article 20(2) of the Constitution a person cannot be prosecuted for the same offence for more than once. Section 300 of the Code of Criminal Procedure (hereinafter to be referred as 'the Code') also prohibits prosecution of any person twice for the same offence and, as such, the offence being similar in nature both the cases should be amalgamated and be tried at Patna. Refuting this arguments Mrs. Anjana Prakash strongly contends that there is no provision in the Code for amalgamation of two criminal cases filed under two different Judge ships. Refuting this arguments Mrs. Anjana Prakash strongly contends that there is no provision in the Code for amalgamation of two criminal cases filed under two different Judge ships. According to her, in a case of this nature when cheques' are deposited in Banks of several places and on dishonour of the cheques complaint, can be filed in a place where cheques were dishonoured. Mr. Yadav supporting the argument of Mrs. Anjana Prakash submits that in view of Section 407 of the Code the High Court can transfer a case from one district to another under certain circumstances and there is no provision for amalgamation of cases, which are pending in two different districts. Under Section 407 of the Code the High Court can order for transfer of the case on three grounds, namely: "(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 expendient for the ends of justice." In the present case there is no allegation that a fair and impartial inquiry or trial cannot be had either at Patna or Aurangabad. Moreover, no such question of law unusual difficulty is likely to arise in the facts and circumstances of the case, No such provision of this Code is required for an order of transfer of the case either from Aurangabad to Patna or Patna to Aurangabad. So far general convenience of the parties and witnesses are concerned, in my view, this also does not come into play in the present case. If the complainant being resident of Aurangabad can prosecute the trial at Patna, then there is no reason as to why the petitioner will feel inconvenience to appear before the Chief Judicial Magistrate at Aurangabad. Moreover, this application is not under Section 407 of the Code with a prayer to transfer of the cases to another district, rather the petitioner has prayed for amalgamation of these two cases when there is no such provision in the Code for such order. Moreover, this application is not under Section 407 of the Code with a prayer to transfer of the cases to another district, rather the petitioner has prayed for amalgamation of these two cases when there is no such provision in the Code for such order. It is well settled that where there is a district provision in the Code for passing some order, the High Court in its writ jurisdiction will not pass such an order, which is not provided in the Code. Mr. Giri has rightly not challenged the jurisdiction of the Aurangabad court to try the case and as such, in my view, the normal course of things should not be lightly interfered with and the case should be allowed to be tried by the court which has territorial jurisdiction. In the facts and circumstances of the case, I am of the view that the petitioner has not been able to make out any case of amalgamation of two cases. I find no merit in this application, which is, accordingly, dismissed.