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2019 DIGILAW 6 (AP)

Bandaru Kanaka v. Polaki Bala Saraswathi

2019-01-28

T.RAJANI

body2019
ORDER : T. RAJANI, J. 1. This petition is filed seeking transfer of CC No. 284 of 2017 from the Court of the Judicial Magistrate of First Class, at Salur, Vizianagaram District, to the Court of the Judicial Magistrate of First Class, at Anakapalle, Visakhapatnam District, on the ground that the petitioner is not well. 2. Heard the Counsel for the petitioner and the learned Public Prosecutor appearing for the 2nd respondent and the Counsel for the 1st respondent. 3. In support of the contention of the petitioner's Counsel that the petitioner is facing difficulty in attending the Court at Vizianagaram, he filed the Medical Certificate, wherein it is stated that the petitioner is suffering from HTN diabetes mellitus and associated symptoms and heart disease from May, 2018. He further submits that the 1st respondent is a resident of Visakhapatnam and he makes an alternative prayer at the time of arguments that the case may be transferred to any Court in Visakhapatnam, so that it would be convenient to both parties. 4. He further contends that it would be easy for the petitioner to attend the Court in Visakhapatnam, which is very nearer to Anakapalle, than to go to Vizianagaram. 5. The Counsel for the 1st respondent though does not plead any inconvenience, with regard to the transfer as sought for by the petitioner, raised a technical objection and argues that Section 142 of the Negotiable Instruments Act confers jurisdiction on the Court within whose jurisdiction cheque is delivered for collection and hence that Court alone shall try the case. The non-obstante clause in Section 142 of the Negotiable Instruments Act, pertaining to the provisions of Criminal Procedure Code, has to be taken as pertaining to the provisions of the Criminal Procedure Code, which deal with jurisdiction of Courts. But, in the considered opinion of this Court, Section 142 of the Negotiable Instruments Act does not overrule the power given to the High Court under Section 407 Cr.P.C. Section 407 Cr.P.C. is as follows: "407. But, in the considered opinion of this Court, Section 142 of the Negotiable Instruments Act does not overrule the power given to the High Court under Section 407 Cr.P.C. Section 407 Cr.P.C. is as follows: "407. Power of High Court to transfer cases and appeals.--(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, 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 expedient for the ends of justice, it may order-- (i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case, or appeals, 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 be committed for trial of to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself; (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one criminal Court to another criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under subsection (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under subsection (7). (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under subsection (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless atleast twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court's power of remand under Section 309. (7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any persons who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under subsection (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under Section 197." 6. If provisions pertaining to jurisdiction of Courts are intended to be construed rigidly, there would have been no necessity for providing for power of transfer under Section 407 Cr.P.C.. It is with an intention of giving power to the High Court, to transfer the cases, if circumstances enumerated therein exist, that Section 407 is enacted. There cannot be any distinction made between cases falling under the N.I. Act and other cases, so far as those circumstances are concerned. It is with an intention of giving power to the High Court, to transfer the cases, if circumstances enumerated therein exist, that Section 407 is enacted. There cannot be any distinction made between cases falling under the N.I. Act and other cases, so far as those circumstances are concerned. There can be no argument that cases under N.I. Act do not need fair and impartial inquiry or trial, or that no question of law of unusual difficulty would arise, or that the parties to the cases under the N.I. Act do not deserve to have the general convenience, as do the parties in other cases, or that ends of justice need not be of concern, in N.I. Act cases. There can be no demur in holding that Section 142 of N.I. Act is subject to Section 407 Cr.P.C.. 7. Hence, considering the above, the criminal petition is allowed and CC No. 284 of 2017 on the file of the Court of the Judicial Magistrate of First Class, at Salur, Vizianagaram District, shall be transferred to any Magistrate Court in Visakhapatnam, after obtaining the orders from the District Judge, Visakhapatnam. 8. As a sequel, the miscellaneous applications, if any pending, shall stand closed.