IMPORTANT POINT
Merely filing of complaint case by petitioner cannot be a reason to transfer complaint cases preferred by respondent.

Vipin Sanghi, J.—Crl. M.A. No.2807/2015 —Exemption allowed subject to all just exceptions.

2. The application stands disposed of.

3. This petition has been preferred under Section 407 Cr.P.C. to seek transfer of the Complaint Case Nos.818, 819, 820, 821, 822, 827, 828 & 829/2013, all under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) pending trial in the Court of Ms. Deepti Devesh, learned M.M., Karkardooma Courts, Delhi, titled “Gulshan Sethi Vs. Naveen Malhotra”, to the Court of Ms. Purva Sareen, Learned M.M., South, Saket, where C.C. No.54/1/2013 (subsequently converted to First Information Report (FIR) No.485/2014, Police Station – Safdarjung Enclave, New Delhi) titled Naveen Malhotra Vs. Gulshan Sethi & Ors., is pending.

4. The facts in brief are that the aforesaid complaint cases under Section 138 of the NI Act have been preferred by Gulshan Sethi against the petitioner herein as the accused in respect of several cheques allegedly issued by the petitioner, which have been dishonoured upon presentation. The petitioner has also preferred a complaint under Section 200 read with Section 156(3) Cr.P.C., which is presently pending in the Court of Ms. Purva Sareen, learned M.M., South, Saket, New Delhi. The learned Magistrate directed registration of FIR, which has been registered as FIR No.485/2014. The investigation is in progress and is being monitored by the learned Magistrate. However, no final report has been filed, and cognizance has not yet been taken. The accused, who is Gulshan Sethi, has not yet been summoned. The substance of the said case preferred by the petitioner is that the cheques – which have been dishonoured upon presentation, were extorted from the petitioner by the respondent.

5. The submission of Mr. Dayan Krishnan, learned senior counsel for the petitioner, in support of this petition is premised on two counts. Firstly, he submits that in view of the judgment of the Supreme Court in State of M.P. Vs. Mishrilal (Dead) & Others, (2003) 9 SCC 426. the correct course to adopt would be to direct that both the cases are tried by the same Magistrate simultaneously.

6. He further submits that in view of the decision of the Supreme Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra & Another, (2014) 9 SCC 129. particularly in view of the observation made in paragraph 22 thereof, the complaint cases preferred by the respondent Gulshan Sethi should be transferred to the Court of a competent Magistrate at Saket Courts since the bank of the petitioner accused, wherefrom the cheques were dishonoured, is within the jurisdiction of the said Court.

7. Mr. Krishnan has referred to and relied upon several other decisions which I do not consider necessary to take note of as they are on the same aspects as aforesaid.

8. So far as the complaint preferred by the petitioner is concerned, no final report has been filed by the Police as yet. The Court is yet to take cognizance of the matter. The accused in the said case, i.e. Gulshan Sethi has not yet been summoned. Therefore, merely filing of the said complaint case by the petitioner cannot be a reason to transfer the complaint cases preferred by the respondent Gulshan Sethi under Section 138 of the NI Act to the Court of Ms. Purva Sareen, learned M.M., South, Saket. The situation may have been different, had cognizance been taken and summons issued to the respondent in the said complaint of the petitioner.

9. So far as the argument founded upon the decision in Dashrath Rupsingh Rathod (supra) is concerned, it needs to be noted that as early as on 05.05.2014, the application of the accused under Section 145(2) of the NI Act had been allowed in the above complaint cases under Section 138 of NI Act. The complainant made a statement through his counsel that he would adopt his pre-summoning affidavit as the post-summoning affidavit. Accordingly, the learned Magistrate directed that the case would be tried as a summons trial. T