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2018 Supreme(J&K) 577
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SANJAY KUMAR GUPTA, J.
Mohammad Basim Malik – Petitioner
Versus
Abdul Hameed Dar – Respondent
CRTA No. 30 of 2017 and IA No. 01 of 2017
Decided On : 28-09-2018
For the Petitioner: Mr. Anil Sethi.
For the Respondent: Mr. Sarfraz Shah.
The convenience of the complainant is a paramount consideration in the transfer of criminal cases, and mere allegations of unfair trial may not be sufficient to warrant a transfer.
Headnote:
Transfer of Criminal Complaint - Negotiable Instrument Act - Section 138, Section 420 RPC - The court discussed the grounds for transferring criminal cases, emphasizing the need for a fair and impartial inquiry or trial and the general convenience of the parties or witnesses. The court also addressed the interpretation of the Supreme Court judgment regarding the jurisdiction for filing a complaint regarding dishonor of a cheque.
Fact of the Case:
The petitioner sought transfer of criminal proceedings related to dishonor of cheques from one court to another, citing concerns about the fairness of the trial due to the situation in the Valley.
Finding of the Court:
The court found that the convenience of the complainant is paramount and dismissed the petition, stating that the mere allegation of unfair trial in the Kashmir Division was not sufficient to transfer the complaint.
Issues: The issues revolved around the grounds for transferring criminal cases, the convenience of the parties involved, and the interpretation of legal provisions related to the jurisdiction for filing a complaint regarding dishonor of a cheque.
Ratio Decidendi: The court emphasized the need to demonstrate how fair trial is not possible and highlighted the importance of the complainant's convenience. The court also clarified that it was not dealing with the maintainability of the complaint before the lower court.
Final Decision: The petition was dismissed, and any interim stay was vacated.
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. 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 c
