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2014 DIGILAW 1999 (BOM)

Ganpat D. Kulthe v. Mahesh S. Chandurkar

2014-09-15

A.M.THIPSAY

body2014
JUDGMENT : A.M. Thipsay, J. 1. Heard Mr. Rane, the learned counsel for the applicant. Heard Dr. Chandurkar, the respondent No. 1, who is present in person. Heard Ms. Kaushik, the learned A.P.P. for the respondent No. 2 - State of Maharashtra. This is an application by the applicant who is the accused in S.C.C. No. 62 of 2012, pending before the Judicial Magistrate First Class, Sangli, for transfer of the case from the Court of the learned Magistrate at Sangli to the Court of Metropolitan Magistrate at Bandra Mumbai, under the powers conferred upon this Court under Section 407 of the Code of Criminal Procedure. The respondent No. 1 herein is the complainant in that case. The case is in respect of an offence punishable under Section 500of the Indian Penal Code. 2. According to the applicant, the applicant and the respondent No. 1 both are residents of Mumbai. It is submitted that the applicant is of 75 years and that it would be convenient for both the parties to have the said case transferred to a Court in Mumbai. It is also submitted that out of the eleven witnesses cited in the complaint, eight witnesses are either from Mumbai and Navi Mumbai and only three witnesses are from Sangli or a place near Sangli. It is also submitted that the trial before the Magistrate at Sangli has not yet commenced though plea of the applicant had been recorded long back. 3. Since the respondent No. 1 who is working as a Deputy Commissioner of Sales Tax in Mumbai did not dispute that he is posted at Mumbai, it was expected that there would be no serious opposition to this application. However, the respondent No. 1 opposed the same by raising a number of contentions. I have taken all these contentions into consideration. 4. The respondent No. 1 initially contended that it would be open for the applicant to seek his exemption from personal appearance before the Magistrate in which case he would not be inconvenienced. In my opinion, there is no substance in this contention. The applicant being the accused in the said case would naturally be anxious to know the manner in which the proceedings proceed and his desire to remain present before the Court on the dates of hearing of the case, would be natural. In my opinion, there is no substance in this contention. The applicant being the accused in the said case would naturally be anxious to know the manner in which the proceedings proceed and his desire to remain present before the Court on the dates of hearing of the case, would be natural. The plea that it is inconvenient for him to attend the Court at Sangli cannot be turned down by saying that he may not remain present before the Magistrate and seek exemption from personal appearance. 5. The respondent No. 1 next contended that the applicant has made this application belatedly. He submitted that the case is pending before the Magistrate since 2012, and the present application has been made for the purpose of delaying the trial. In my opinion, the application cannot be said to be delayed, inasmuch as, the trial proceedings have not yet commenced. Secondly, delay, by itself, would not result in to the rejection of the application for transfer, if otherwise a case is made out that it would tend to the general convenience of all concerned to have the matter tried in a Court at Mumbai. 6. The respondent No. 1 then contended that the claim that the applicant is physically not well is not correct and that the applicant travels extensively. It is submitted that the applicant is the Chief Advisor of the Maharashtra State Gazetted Officers Federation and all his expenses are borne by the Federation. The learned counsel for the applicant, in this regard, submitted that it is true that the applicant had been travelling extensively in connection with the work of Federation, but, recently he has not been keeping good health and since last three months he has not been travelling. It is, however, admitted that the expenses of the applicant of travelling from Mumbai to Sangli are borne by the federation. 7. The respondent No. 1 contended that though a majority of the witnesses are from Mumbai and Navi Mumbai, his three prime witnesses from Sangli and Kolhapur. He submitted that these witnesses would find it inconvenient to attend the Court at Mumbai. 8. I have considered this aspect of the matter. Indeed, it appears that eight of the witnesses cited are from Mumbai and Navi Mumbai, but three are from Sangli or Kolhapur. He submitted that these witnesses would find it inconvenient to attend the Court at Mumbai. 8. I have considered this aspect of the matter. Indeed, it appears that eight of the witnesses cited are from Mumbai and Navi Mumbai, but three are from Sangli or Kolhapur. In this context, I have asked the learned counsel for the applicant as to whether the applicant would bear the travelling expenses of these three witnesses. The learned counsel, on instructions from the applicant who is present in the Court, submitted that the applicant would bear the travelling expenses of these witnesses from their place of residence to Mumbai, in the event of the case being transferred to Mumbai. 9. The respondent then contended that the applicant is backed by the federation and that the respondent No. 1 is fighting the case on his own. He submitted that he hails from Sangli and that it would be important for him to have the case tried in Sangli. 10. I have carefully considered this aspect of the matter. Undoubtedly, the defamation of the applicant must have aroused more sensation in Sangli than in Mumbai. Therefore, the anxiety of the respondent No. 1 to prosecute the applicant before a Court at Sangli is understandable. However, at the same time, it cannot be overlooked that it is not that there would not be a fair trial in a Court at Mumbai. The necessity to have the case tried in the Court at Sangli as felt by the respondent No. 1, though apparently genuine, is not based on the question of convenience as such, but apparently because he would find the atmosphere prevailing in the Court at Sangli more comfortable, by reason of his being from the same place and by reason of his knowing a large number of persons there. This aspect of the matter has to be viewed from two angles. The first is the comfort felt by the respondent No. 1 in having the case tried in the Court at Sangli and the second would be the discomfort felt by the applicant in having the case tried before a Court at Sangli, obviously for the same reason. This aspect of the matter has to be viewed from two angles. The first is the comfort felt by the respondent No. 1 in having the case tried in the Court at Sangli and the second would be the discomfort felt by the applicant in having the case tried before a Court at Sangli, obviously for the same reason. Though this ground has not been raised by the applicant because his prayer for transfer is based on the ground of convenience of all concerned, if the aspect of the respondent No. 1 being from Sangli, and, therefore his feeling it necessary to have the case tried there is emphasised, the other angle of this aspect, cannot be overlooked. 11. What is further significant is that the Roznama of the case, a copy of which is annexed to the application, indicates that the accused has always been remaining present before the trial Court but the complainant i.e. the respondent No. 1 has not been remaining present always. In fact, on a number of dates, as given by the trial Court the respondent No. 1 was not present and it appears that on one occasion the learned Magistrate granted an adjournment to the respondent No. 1 only on payment of costs. The plea of the applicant was recorded on 28th August, 2012. Since then the case is pending for recording of the evidence. Thus, it appears to me that though the expenses of the applicant of his attending the Court at Sangli are being borne by the federation, still, when both the parties are settled in Mumbai, requiring them to remain present before the Court at Sangli where, obviously, the respondent No. 1 also cannot remain present without spending considerable time, would be rather unreasonable. 12. The respondent No. 1 then submitted that he is in Mumbai only because of his posting and that after December 2014 he is likely to be transferred to some other place. I find that admittedly the respondent No. 1 is in Mumbai for a period of 15 years and merely because there exists a possibility of he being transferred to some other place after December 2014, the transfer application, which otherwise has merit, ought not to be rejected. In any case the respondent No. 1 will not be transferred to Sangli, as it is his native town. 13. In any case the respondent No. 1 will not be transferred to Sangli, as it is his native town. 13. Considering the totality of the circumstances and the points for and against the parties, I am of the opinion that a case for transferring the said case to the Court of a Metropolitan Magistrate in Mumbai has been made out. Such transfer would tend to the general convenience of all the concerned including the witnesses. It is, however, necessary to give appropriate directions to the transferee Court, in the interest of justice. 14. The application is allowed. 15. The case be transferred to the Court of Metropolitan Magistrate at Bandra, Mumbai, who exercises local jurisdiction over the place where the respondent No. 1 resides i.e. Government Colony at Bandra (East). 16. The applicant shall bear the expenses of the witnesses of the respondent No. 1 who are not residing in Mumbai/Navi Mumbai, who would be required to and actually attend the Court for giving evidence. The expenses required to be incurred by these witnesses shall be determined by the learned Magistrate in accordance with the rules and the learned Magistrate may require the amounts to be deposited in advance before the witnesses actually attend the Court. 17. The record and proceedings of the case shall be forwarded to the concerned Metropolitan Magistrate expeditiously. 18. The learned Magistrate in whose Court the case would be transferred shall proceed with the case expeditiously and endeavour to dispose it of within a period of six months from the date of receipt of the record and proceedings by him. The application is disposed of in the aforesaid terms.