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2018 DIGILAW 741 (JK)

Mohammad Basim Malik v. Abdul Hameed Dar

2018-09-28

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the instant petition, petitioner seeks transfer of the proceedings in the shape of criminal complaint titled Abdul Hameed Dar vs. Mohammad Basim Malik under Section 138 Negotiable Instrument Act read with Section 420 RPC from the Court of Judicial Magistrate 1st Class Charar-i-Sharief to any competent Court of jurisdiction at Jammu. 2. The petitioner claims to have been served with a notice from the Court of Munsiff JMIC Charar-i-Sharief Kashmir in a complaint filed by the respondent-Abdul Hameed Dar with regard to dishonor of cheque. 3. Learned counsel for the petitioner states that both the petitioner and respondent are carrying on business of dry and fresh fruits, like Almond, Wall Nuts. The petitioner issued certain cheques to the respondent at Jammu from his account maintained at Town Hall, Jammu. The cheques so issued to the respondent were presented before the J&K Bank Branch Charar-i-Sharief for encashment on 12.06.2017 and the banker of the petitioner has returned the cheques with a memo containing the remark “Not sufficient.” Aggrieved thereof, respondent filed a complaint under Section 138 of the Negotiable Instruments Act read with Section 420 RPC against the petitioner before the Court of Munsiff JMIC Charar-i-Sharief Kashmir. 4. Learned counsel for the petitioner submits that the complaint regarding dishonor of cheque has to be made before the Magistrate within whose jurisdiction the holder of the account resides or from where the cheque is issued. In support of his contention, reliance is placed on a decision of the Hon’ble Supreme Court reported in 2014 (9) SCC 129 in case titled Rupsingh Rathod Dashrath Vs. State of Maharashtra & Another. 5. It is further stated that it is unsafe for the petitioner to attend the proceedings before the Court of Munsiff JMIC Charar-i-Sharief Kashmir as situation in the Valley is not conducive and a fair trial of the case is not possible. 6. Respondent has filed objections. The stand taken by the respondent is that there is no disturbance in the area where the concerned Court is situated and all the Courts in the Valley are working smoothly and moreover, petitioner has not yet appeared before the concerned Court, as such, allegations leveled in the petition are denied. 6. Respondent has filed objections. The stand taken by the respondent is that there is no disturbance in the area where the concerned Court is situated and all the Courts in the Valley are working smoothly and moreover, petitioner has not yet appeared before the concerned Court, as such, allegations leveled in the petition are denied. It is stated that after the judgment rendered in Rupsingh Rathod Dashrath’s case (supra) there was an amendment i.e. the Negotiable Instruments (Amendment) Act, 2015 (26 of 2015 w.e.f. 15.06.2015) and as per this amendment, Section 142 Clause (2) of Negotiable Instruments Act, the same is reproduced as under:- “Section 142: (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. (b) If the cheque is presented for payment by 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.” 7. It is further stated that respondent has filed a complaint before the Court of Munsiff JMIC Charar-i-Sharief Kashmir, which is permissible under Section 138 of the Negotiable Instrument Act and he is a senior citizen and the petitioner has swallowed his hard earned money due to which he is in financial crunch. 8. I have considered the rival contentions and law on the subject. Section 526 of Cr.P.C. reads as under: “526. High Court may transfer case or itself try it - (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. (b) that some question of law of unusual difficulty is likely to arise. (c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same. (d) that an order under this Section will tend to the general convenience of the parties or witness. (b) that some question of law of unusual difficulty is likely to arise. (c) that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same. (d) that an order under this Section will tend to the general convenience of the parties or witness. (e) that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order:- (i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (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 or appeal be transferred to and tried before itself.” 9. From the bare perusal of this section, it is evident that High Court has power to transfer criminal cases from one session’s division to another session’s division on the grounds that a fair and impartial inquiry or trial cannot be held in any subordinate criminal court; that is for the general convenience of the parties or witnesses. These are some of valid grounds for transfer. There are also other grounds which the High Court can think proper in the facts and circumstances of particular case. 10. In present case after going through the grounds mentioned in this petition, it is apparent that only ground taken is that petitioner is unable to attend the proceedings before the Court of Munsiff JMIC Charar-i-Sharief Kashmir as situation in the Valley is not conducive and a fair trial of the case is not possible. 11. But fact of the matter is that complainant is a resident of Kashmir Division. The convenience of complainant is paramount consideration, than that of accused/petitioner. Mere bald allegation that fair trial is not possible at Kashmir Division is not enough to transfer the complaint. Petitioner has to show as to how fair trial is not possible, when all the courts in Valley are functioning. 12. The convenience of complainant is paramount consideration, than that of accused/petitioner. Mere bald allegation that fair trial is not possible at Kashmir Division is not enough to transfer the complaint. Petitioner has to show as to how fair trial is not possible, when all the courts in Valley are functioning. 12. Another ground taken that as per Supreme Court judgment reported in 2014 (9) SCC 129 , Rupsingh Rathod Dashrath v. State of Maharashtr & Another, complaint regarding dishonor of cheque has to be made before the Magistrate within whose jurisdiction the holder of the account resides or from where the cheque is issued, is not tenable. Because, this court is not dealing with regard to maintainability of complaint before court below. 13. In view of above, there is no merit in this petition, it is dismissed. Interim stay, if any, is vacated.