949-J-APPLN-15-14 1/6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION (APPLN) NOS.15, 35 to 48, 54, 69 to 72 OF 2014 [ENTITY], s/o Govind Bahadarpurkar, Aged about 66 years, Occ.Nil, r/o 19/B, Raksha Lekha Society, Dhankavadi Pune. -vs- [ENTITY] s/o [ENTITY] Aged about 48 years, Occ. Business, r/o Mathane Sankul LRT College Road, [ENTITY], Taluka District [ENTITY]. non-applicant. Shri [ENTITY], Advocate for applicant in all criminal applications. Shri [ENTITY], Advocate for non-applicant in all criminal application. CORAM : [ENTITY], J.
DATE : November 30, 2017 Common Judgment :
Since common issue arises in all these criminal applications filed under [SECTION] of the [ACT] (for short, the Code), they are admitted and with consent of learned counsel for the parties, the applications are taken up for final hearing.
2. The non-applicant in all these applications is the complainant who has filed ten complaints under [SECTION] of the [ACT] (for short, the Act of 1881) against the applicant herein. These complaints have been filed before the learned Judicial Magistrate, First Class at [ENTITY] and the same are pending. They were filed in the year 2007. Subsequently in the year 2008, the present applicant filed a complaint under [SECTION], [SECTION], [SECTION], [SECTION] read with [SECTION] of the [ACT] against the non-applicant in the Court of learned Judicial Magistrate, First Class at Khadki, Pune. Said complaint is also pending.
By the present applications it is prayed that all the complaints filed by the non-applicant under [SECTION] of the Act of 1881 be transferred to the Court of Judicial Magistrate, First Class, Pune so that they can be decided along with the complaint filed by the applicant herein.
3. Shri [ENTITY], learned counsel for the applicant submitted that the applicant is a senior citizen and his convenience ought to be taken into account so that all proceedings are conducted at Pune. Referring to the complaint filed by the applicant as well as the order passed in [CASE NUMBER] at the Principal Seat, it was submitted that the entire material which is collected by the Investigating Officer is also placed before the said Court at Pune. The witnesses sought to be examined by the applicant are from Pune and therefore the complaints which are pending at [ENTITY] deserve to be transferred to the Court at Pune.
4. Shri [ENTITY], learned counsel for the non-applicant on the other hand submitted that the cause of action for filing the complaints under [SECTION] of the Act of 1881 has arisen at [ENTITY]. The notices under the Act of 1881 were issued from [ENTITY]. The complaint filed by the applicant herein is only to counter the complaints under [SECTION] of the Act of 1881 and is subsequent to the complaints filed by the non- applicant. The witnesses sought to be examined are from [ENTITY] and merely on the ground that it is convenient for the applicant to attend the proceedings at Pune, all the cases cannot be transferred there. In support of his submissions the learned counsel paced reliance on the decisions in [PRECEDENT], [PRECEDENT], [ENTITY] and anr vs. Rohit Jain (2007) 7 Supreme Court Cases 454, [PRECEDENT] and [PRECEDENT].
5. I have heard the learned counsel for the parties at length and I have perused the documents filed on record. Under provisions of [SECTION] of the Code, transfer of proceedings from one Court to another can be ordered if it is found that same would be to the general convenience of the parties or witnesses or that the same is expedient for the ends of justice. Such power can be exercised by the High Court even on its own initiative under [SECTION] of the Code. As observed in [PRECEDENT] (supra), there cannot be any universal rule for deciding a transfer petition and it has to be decided on the basis of the facts of each case. Convenience of parties and witnesses is one of the relevant consideration. However, convenience of parties would not mean the convenience of one of such parties alone. It would be in convenience of the entire case. In [ENTITY] and ors. (supra) filing of a case prior in time to the other case was given weightage.
6. While examining the facts of the present cases it can be seen that the cheques in question drawn by the applicant were presented for being cleared. Notices under [SECTION] of the Act of 1881 were issued from [ENTITY] and all the complaints under [SECTION] of the Act of 1881 were filed in the year 2007. There are in all ten complaints filed by the non-applicant. The complaint filed by the applicant is in the year 2008 and the same has been filed at Pune. It alleges breach and cheating at the behest of the non-applicant. Taking an overall view of the matter and in exercise of jurisdiction under [SECTION] of the Code, I find that as above ten complaints were already filed at [ENTITY] by the non-applicant after which the applicant filed his complaint at Pune and as both the proceedings relate to the same cheques, it would be expedient if the complaint filed at Pune by the applicant is transferred for being heard along with the complaints filed by the non-applicant at [ENTITY]. While doing so care can be taken that the applicant is not required to frequently visit [ENTITY] for prosecuting all the cases. The applicant can be directed to remain present only when his presence is necessary either for recording his evidence or for being cross-examined. He can be represented through his lawyer on other occasions. Appropriate directions in that regard or any other directions found necessary in the interests of justice can be issued by the trial Court so as to avoid unnecessary presence of the applicant and his witnesses, if any, at [ENTITY].
7. Accordingly the following order is passed :
The proceedings in [CASE NUMBER] filed by the applicant and pending in the Court of Judicial Magistrate, First Class, Pune are directed to be transferred to the Court of Judicial Magistrate, First Class, [ENTITY] for being tried with [CASE NUMBER] and other connected cases filed by the non-applicant. All proceedings shall be decided together on their own merits and in accordance with law.
The trial Court shall issue appropriate directions requiring the presence of the applicant at [ENTITY] only when found necessary.
Applications are disposed of in above terms. No costs.
JUDGE [ENTITY]