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2020 DIGILAW 359 (GAU)

Anil Kumar Singhania v. Toi Modi

2020-03-09

PARTHIVJYOTI SAIKIA

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JUDGMENT Parthivjyoti Saikia, J. - Heard the learned Senior Counsel Mr. A. Apang, assisted by Ms. N. Anju, learned counsel for the petitioner. Also heard Mr. O. Modi, learned counsel for the respondent No. 1 as well as Ms. L. Hage, learned Public Prosecutor for the State respondent No.2. 2. This Transfer petition (Criminal) has been filed by the petitioner praying for transfer of Complaint Case No.67/2018 pending in the Court of the Chief Judicial Magistrate-cum-Civil Judge (Sr. Division), Yupia, Papum Pare District. 3. The case of the petitioner, as projected in the petition may be stated as under. 4. The respondent No.1 filed a complaint case being Case No.67/2018 against the present petitioner under Section 138 of the Negotiable Instruments Act, 1881 ( NI Act in short). The respondent No.1 is a resident of Pasighat under Pasighat Police Station in the East Siang District of the State of Arunachal Pradesh, whereas the petitioner is a resident of Kolkata, West Bengal. Both the respondent No.1 and the petitioner were known to each other since the year 2010. 5. The petitioner was the Director of M/s Syam Retail Private Ltd. and he was running a shop by the name and style of Max Mart at Barapani, Naharlagun, Arunachal Pradesh. The respondent No.1 was promoter of the said Max Mart and he invested a sum of Rs.150,00,000/-(Rupees One Crore Fifty Lakhs) with the M/s Syam Retail Private Ltd. The aforesaid investment was made under the conditions that the present petitioner will have to pay interest over the principle amount. After the aforesaid investment, the petitioner again approached the respondent No.1 for further investment. Accordingly, the respondent No.1 invested Rs.200,00,000/-(Rupees Two Crores). The respondent No.1 thereafter paid the second investment, the present petitioner did not re-pay the principle amount. 6. In the year 2014, the present petitioner and the respondent No.1 had come to an agreement, by which, the petitioner agreed to pay back Rs.175,00,000/-(Rupees One Crore Seventy Five Lakhs). Accordingly, an amount of Rs.85,00,000/-(Rupees Eighty Five Lakhs) was paid to the respondent No.1. At that time, it was agreed that the remaining Rs.275,00,000/-(Rupees Two Crore Seventy Five Lakhs) shall be paid at latter stage. 7. On 28.03.2018, both the sides again had another agreement and by that agreement, the present petitioner agreed to pay Rs.100,00,000/-(Rupees One Crores) only to the respondent No.1 as final settlement. At that time, it was agreed that the remaining Rs.275,00,000/-(Rupees Two Crore Seventy Five Lakhs) shall be paid at latter stage. 7. On 28.03.2018, both the sides again had another agreement and by that agreement, the present petitioner agreed to pay Rs.100,00,000/-(Rupees One Crores) only to the respondent No.1 as final settlement. Out of the aforesaid One Crores, Rs.30,00,000/-(Rupees Thirty Lakhs) was paid and remaining Rs.70,00,000/-(Rupees Seventy Lakhs) was to be paid at the latter stage. Thereafter, the present petitioner issued 2(two) nos. of cheque on 27.04.2018, one amounting to Rs.20,00,000/-(Rupees Twenty Lakhs) and other amounting to Rs.50,00,000/-(Rupees Fifty Lakhs). The respondent No.1 presented the cheques in the bank, but both the cheques were dis-honourned because their payment was stopped by the drawer. 8. Finally, the respondent No.1 filed the case under Section 138 of the NI Act, 1881 against the present petitioner. The Court issued notice to the petitioner. Now the petitioner has filed this petition praying for transfer of the case from the Court at Yupia to the Court of the Chief Judicial Magistrate, Kamrup, Guwahati. 9. It may be mentioned that the respondent No.2 also filed a Money Suit being Money Suit Case No.06/2016 for recovery of the money. In the aforesaid Money Suit, the petitioner did not appear and ex-parte decree was passed. During the execution of the decree, the petitioner was arrested at Kolkata. The petitioner claimed that for execution of the aforesaid decree another person, named, Ramesh Kumar Chokani was also arrested by the police, but he paid the money for satisfaction of the decree against him and accordingly, he was released by the police. 10. The petitioner has claimed that when he was brought from Kolkata and was kept at Arunachal Bhawan at Guwahati. The respondent No.1 along with some police personnel had physically tortured him. He was allegedly threatened that he will be killed unless he pay sum of Rs.2.5 Crores. Under the threat of life, the petitioner again put his signature in an agreement dated 20.03.2018. But on that occasion, the brother of the petitioner had paid Rs.30,00,000/-(Rupees Thirty Lakhs) to the respondent No.1 in cash and on that day, the respondent No.1 forced him to put signature in two nos. of cheque, one is worth Rs.20,00,000/-(Rupees Twenty Lakhs) and the other worth Rs.50,00,000/-(Rupees Fifty Lakhs). After that the petitioner was released. But on that occasion, the brother of the petitioner had paid Rs.30,00,000/-(Rupees Thirty Lakhs) to the respondent No.1 in cash and on that day, the respondent No.1 forced him to put signature in two nos. of cheque, one is worth Rs.20,00,000/-(Rupees Twenty Lakhs) and the other worth Rs.50,00,000/-(Rupees Fifty Lakhs). After that the petitioner was released. The petitioner has stated that those were the two cheques, which were in question in the case before the Court below. 11. The petitioner has also stated that after his release, he also filed a complaint case under Sections 208/342/352/420/506/120(B) of the IPC against the respondent No.1 and one police officer in the Court of Sub-Divisional Judicial Magistrate No.1 at Kamrup(M), Guwahati. According to the petitioner, the Court in Guwahati has taken cognizance of the aforesaid offences and issued notice to the respondent No.1 as well as the aforesaid police officer. The petitioner has claimed that the he has also filed a Civil Suit being Title Suit No.533/2018 against the respondent No.1 for recovery of Rs.100,00,000/-(Rupees One Crore) at Kolkata. 12. The petitioner has claimed that for the purpose of appearing in the Court of the Chief Judicial Magistrate, Yupia in connection with the complaint Case No.67/2018, the petitioner has sought police protection. He had written a letter to the Superintendent of Police, Naharlagun on 17.10.2018, but that letter remained not answer. Therefore the petitioner prayed that the complaint Case No. 67/2018 should be transferred to the Court of Chief Judicial Magistrate, Kamrup(M), Guwahati for trial. 13. The learned Senior Counsel Mr. A. Apang, assisted by Ms. N. Anju, learned counsel for the petitioner submitted before this Court that the present petitioner is a non-Arunachalee therefore, there is an apprehension that he might not be safe in the State of Arunachal Pradesh. 14. Per contra, Ms. L. Hage, learned Public Prosecutor has submitted that the Arunachal Police is ready to offer security to the petitioner during his entire stay in the State of Arunachal Pradesh. To that effect, the learned counsel has filed copy of a letter, which was written by the Superintendent of Police, Itanagar to the petitioner and his brother. In the aforesaid letter, the Superintendent of Police, Itanagar has undertaken to provide security to the petitioner since his arrival in the State of Arunachal Pradesh till his departure from the State. 15. Mr. Apang, learned Sr. In the aforesaid letter, the Superintendent of Police, Itanagar has undertaken to provide security to the petitioner since his arrival in the State of Arunachal Pradesh till his departure from the State. 15. Mr. Apang, learned Sr. Counsel has relied upon a decision of this Court that was rendered in Maguni Charan Behra (Prof.) Vs. State of Arunachal Pradesh and Ors., (2018) 1 GauLT 697 . 16. I have gone through this judgment. The story of the aforesaid case of the petitioner is like this wxyz The petitioner was the Director of Rajiv Gandhi University, Doimukh. There was an allegation against the petitioner that he had physically molested one female PhD scholar. She had filed a case in the Police Station and the police was ultimately chargesheeted the case. When the aforesaid Director had appeared before the Court of Chief Judicial Magistrate, Papum Pare, Yupia, a group of persons surrounded him and assaulted him. Therefore, the aforesaid Director filed a petition before the Court praying for transfer of the case to a Court at nearby North Lakhimpur, Assam. zyxw 17. Whenever a person has reasonable apprehension that he may not get justice in the particular place, he may seek such transfer of a case. Here, this is not the case of the petitioner that he will not get justice in the Court of Arunachal Pradesh. Here only the fears that the respondent No.1 might cause harm to him. The present case in hand is not similar to Maguni Charan Behra (Prof.) (Supra). Moreover, the Superintendent of Police, Papum Pare, Itanagar has undertaken to provide security to the petitioner from the border of the Arunachal Pradesh at Banderdewa, during his stays in the State of Arunachal Pradesh till he leaves the boundary at Banderdewa. 18. In Gurcharan Das Chadha Vs. State of Rajasthan, (1966) 2 SCR 678 , dealing with the issue for transfer of a case, it was observed: wxyz The law with regard to transfer of cases is well-settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is appre-hension that justice will not be done in a given case does not office. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the State of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained but must appear to the Court to be a reasonable apprehension. zyxw 19. Coming back to the case in hand, I am of the considered opinion that the apprehension of not getting justice in a court at Arunachal Pradesh is not reasonable and its imaginary only, that too based on conjectures and the surmises. Therefore, I do not find any merit in the present transfer petition. Accordingly, the transfer petition stands dismissed. However, the Superintendent of Police, Papum Pare, Itanagar is directed to provide round the Clock security to the petitioner and his acquaintances, who may accompany him at Arunachal Pradesh whenever he enters Arunachal border at Banderdewa till he leaves Arunachal Pradesh at Banderdewa. wxyz The Transfer petition (Criminal) is disposed of zyxw .