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2002 DIGILAW 154 (CAL)

TUSHAR KANTI ADHIKARI v. GLAXO INDIA LTD. , STATE OF WEST BENGAL

2002-03-08

AMIT TALUKDAR

body2002
AMIT TALUKDAR, J. ( 1 ) PURSUANT to petition of complaints filed by the opposite party No. 1 before the learned Sub-Divisional Judicial Magistrate, Alipore, the petitioner has been arrayed in a list of 10 proceedings under Section 138 of the Negotiable Instruments Act for dishonour of cheques ranging to different sums of amount. He has made his initial appearance and has been enlarged on bail in all the said proceedings. ( 2 ) PRESENTLY, the petitioner has moved this Court in these batch of Revisional Applications under Section 407 of the Code of Criminal Procedure for transferring the proceedings to Tamluk Court from Alipore Court on the ground that he is a man of 70 years of age and the vital witnesses come from Tamluk and it would be a great hardship on his part to either engage a lawyer of his choice at Alipore Court or to attend the court daily from Tamluk and further that the various proceedings are scattered in different courts of the learned Judicial Magistrate in Alipore Court and different dates are being given, he has to make his journey from his home town to Alipore after undertaking great hardship. ( 3 ) IN each of the applications which are taken up together and are disposed of by this common judgment which will govern the fate of each of the said applications, the similar ground has been taken by Mr. AH appearing for the petitioner. Each of the said applications are individually opposed by the learned Advocates appearing for the State of West Bengal principally on the ground that the requirement of Section 407 (5) of the Code of Criminal Procedure has not been pleaded and as the ground of transfer has not been made out in the petition under Section 407 of the Code of Criminal Procedure and further the cause for transfer is also not satisfactory and it is apposite that the cases should be tried as they are pending before the present forum. Learned Advocates appearing for the State have further submitted that in view of the fact that the petitioner has been summoned in connection with the cases under Section 138 of the Negotiable Instruments Act where volume of the amounts ranges to Rs. Learned Advocates appearing for the State have further submitted that in view of the fact that the petitioner has been summoned in connection with the cases under Section 138 of the Negotiable Instruments Act where volume of the amounts ranges to Rs. 16 lakhs, the trial should be expeditiously held and even though the witnesses may come from Tamluk for all dates cannot be a ground for transfer as the complainant is also to travel all the way from Calcutta. The submission of the State was further that the grounds are too nebulas in nature and the Revisional Applications should be dismissed. ( 4 ) MR. Jay Sengupta, learned Advocate appearing for the opposite party No. 1 in all the applications, has opposed these applications on the ground that the averments made in the applications for transfer are not inspiring any confidence. He has adopted the submission of Miss Jharna Biswas, learned Advocate appearing for the State in C. R. R. 2124 of 2000, to the effect that in the absence of any ground as contemplated under Sub-clause (5) of Section 407 of the Code of Criminal Procedure being absent, the applications per se be not maintainable. He has also adopted the submission of Mr. Aslam Khan, learned Advocate appearing for the State in C. R. R. 2120 of 2000 and stated that the revisional applications involve a huge sum of money and' the ground that the petitioner cannot come to Calcutta to depose and the witnesses are in Tamluk are too insignificant and accordingly the petitioner deserves no consideration and the revisional applications should be dismissed. He has referred to the decision of the Supreme Court in the case of Mrs. Maneka Sanjay Gandhi and Anr. v. Mrs. Rani Jethmalani, reported in 1979 SCC (Cri) 934, which has also been referred to by Mr. Ahmed, learned Advocate appearing for the State In C. R. R. 2115 of 2000 and submitted that a motion for transfer cannot be passed on hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances and accordingly has prayed for dismissal of all the revisional applications. He has further referred to another Single Bench decision of this Court where the complainant was also a party and prayer for transfer was dismissed and accordingly he has prayed for dismissal of the Revisional Applications. He has further referred to another Single Bench decision of this Court where the complainant was also a party and prayer for transfer was dismissed and accordingly he has prayed for dismissal of the Revisional Applications. ( 5 ) HAVING heard the submissions of the learned Advocates appearing for each of the parties and on considering the materials on record, I am of the view that even though it is true that the petitioner has reached an advanced age and some of the witnesses come from Tamluk that itself cannot be a ground to transfer the cases from Alipore to Tamluk for the reasons which have been submitted by Mr. Ashraf Ali, learned Advocate appearing for the petitioner. These grounds do not inspire much confidence in the mind of the court to accede to his prayer. In order to consider a prayer for transfer there has to be some cogent and overwhelming circumstances and as has been pointed by Mr. Sengupta, learned Advocte appearing for the opposite party No. 1, relying on the decision of Maneka Sanjay Gandhi v. Mrs. Rani Jethmalani (supra) that the question of transfer cannot be based on hypersensitivity and technical approach. The prayer of Mr. Ashraf Ali, I am afraid, cannot be sustainable. However, I cannot also be oblivious of the fact that the petitioner has reached his geriatric age and has to undertake the journey for several kilometers from his native town at Tamluk to Alipore and the consequential agony he has to suffer after having been impleaded in the array of accused of so many criminal cases in a foreign place far way from his home. That is also a point which cannot altogether shut out this court from consideration. ( 6 ) TO allay the inconvenience of the petitioner, it is directed in the first instance that all the trials scattered in several various courts of the learned Judicial Magistrates in Alipore will have to be put in the single canopy of the court of the learned Chief Judicial Magistrate, Alipore for successive trial in order to eschew the inconvenience of the petitioner from travelling on different dates to Calcutta from his native town at Tamluk. In the second instance, I think the difficulty of the petitioner could not have been better taken care of than in the following lines of the decision of the Supreme Court in the case of Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Ors. , reported in 2001 Supreme Court Cases (Crl.) 1254:. "these are days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of inter-State transactions through facilities of the banks, it is not uncommon that when prosecutions are instituted in one State and the accused might belong to a different State, sometimes a far distant State. Nor very rarely, such accused would be ladies also. For prosecution under Section 138 of the N. I. Act the trial should be that of a summons case. When a Magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship arid cost to a particular accused, it is open to the Magistrate to consider how he can relieve such an accused of the great hardship without causing prejudice to the prosecution proceedings. " ( 7 ) AS such this application is disposed of on the aforesaid directions that all the various proceedings scattered in the courts of the learned Judicial Magistrates, Alipore would have to be amalgamated to the court of the learned Chief Judicial Magistrate upon the same being transferred henceforth to the court of the later who will try them in quick succession of each other. Secondly, as already the petitioner has made his initial appearance, he will be entitled to be represented by his learned Advocate on the various dates of the proceeding on condition that he will not challenge his identify and that he will be represented by his nominated Advocate on all the dates of proceeding unless of course it is absolutely impelling situation of the hour in the trial for him to attend physically and the learned Chief Judicial Magistrate would accordingly allow him exemption under Section 205 of the Code of Criminal Procedure in all the proceedings forthwith. Lastly, it is also directed that the proceedings which henceforth stand transferred to the court of the learned Chief Judicial Magistrate, Alipore, shall be proceeded with by the learned Chief Judicial Magistrate from the stage where it has been before the individual trial courts and the learned Chief Judicial Magistrate, after communication of this order, shall endeavour to conclude the entire trial of all the cases within a period of 90 days from the date of communication of this order. ( 8 ) THE Revisional Application is accordingly disposed of in the above direction.