1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 3201/2009 Fazalur Raeman Gulam Nabi ..vs.. Mohd. Zuber s/o Mohd. Mohasin & anr. --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. S. V. Sohoni, Advocate for applicant. Mr. C. A. Joshi, Advocate for non applicant no.1. Mr. V. A. Thakare, A.P.P. for non applicant no.2. CORAM:- S. S. SHINDE, J. DATED :- 26 th NOVEMBER,2009 1. This application takes exception to order dated 29.08.2009 passed by Sessions Judge, Akola in Misc. Judicial Case No. 33/2009 by which transfer application filed by present applicant to transfer his case from Judicial Magistrate First Class, Balapur to any other Court at Akola has been rejected. Brief facts of the case are as under. 2. On 22.06.2009, non applicant no.1 filed complaint under Section 138 of the Negotiable Instruments Act against the applicant before Judicial Magistrate First Class, Balapur. The said complaint was registered as Complaint Case No. 200/2009. On 22.07.2009, the applicant appeared before the Court and furnished the bail. 2 3. It is the case of the applicant that non applicant no.1 sent a message to the applicant that the applicant should pay the amount of the disputed cheque. It is also informed by non applicant no.1 that he has good relations and well acquaintance with Magistrate and he is playing Volleyball with the Magistrate. Non applicant no.1 was also informed that he is going to succeed in the matter. It is further submitted by the applicant that on 31.07.2009, the applicant filed application under Section 408 of the Code of Criminal Procedure for transferring the criminal case form the Court of Judicial Magistrate First Class, Balapur to the Court at Akola. The said matte was registered as Misc. Judicial Case No. 33/2009 before Sessions Court, Akola. On 10.08.2009, the applicant was ill and taking treatment at Akola and, therefore, moved an application before Judicial Magistrate First Class, Balapur for grant of exemption form appearing on that day before the Magistrate through his counsel. It is further alleged that by cryptic order, the said application came to be rejected by the learned Magistrate. On 20.08.2009, non applicant no.1 filed reply and opposed the transfer application. The Sessions Court, by order dated 29.08.2009, rejected the application for transfer. Hence, present application is filed by the applicant. 3 4. Learned counsel for the applicant invited my attention to the following lines from the said application:- “It is also informed to the applicant that, the N.A. No.1 and other Advocates of Balapur Taluka used to play volleyball, with the Magistrate of Balapur, the applicant himself has seen on many occasion to the N.A. No.1 and other Advocates while playing volleyball with the Hon’ble Magistrate. In such circumstances, a reasonable apprehension developed int he mind of the applicant that he would not get fair and impartial trial if case is tried by J.M.F.C. Balapur.” 5. The learned counsel, therefore, submitted that on affidavit he has stated so before the Court, therefore, his application for transfer should have been allowed. Learned counsel further invited my attention to the reply filed by non applicant no.1 to the application filed by the applicant and submitted that non applicant no.1 in para 4 of the affidavit-in- reply has stated that, “N.A. no. 1 just completed his education of law. He appeared the law exam in the month of May 2009 and yet no sanad received by him from the bar council of Maharashtra and Goa, which is necessary for the legal practice.” Learned counsel invited my attention to the finding recorded by 4 Sessions Judge, Akola in para 2 and submitted that in the said para, the Court has recorded that, “Learned advocate Shri Karale submitted that in fact complainant N.A.No.1 failed at 4th year law examination and he has tried to produce mark-sheet of the N.A. No.1 on record to show that he is not a practicing advocate nor can he practice before any court since he is not law graduate.” 6. On the basis of these two versions, one from the affidavit-in-reply filed by non applicant no.1 before the Court and other version, which appears in the judgment of the Sessions Judge, Akola, learned counsel would submit that the person, who is approaching the Court with different versions, things should have been dealt with in accordance with law and the application filed by applicant should have been allowed. Learned counsel further submitted that he has placed on record affidavits of number of persons from the said place to support his contents that non applicant no.1 used to play Volleyball with the Magistrate. Therefore, learned counsel would submit that this application may be allowed. Learned counsel further invited my attention to the grounds taken in the application and annexures thereto and submitted that in the interest of justice, this application deserves to be allowed. 5 7. Learned counsel for non applicant no.1 vehemently opposed the application and submitted that the point raised in this application is disputed question of fact and application under Section 482 of Code of Criminal Procedure is not maintainable. Learned counsel also supported judgment and order impugned in this application and submitted that the application deserves to be rejected. 8. I have heard learned counsel for the applicant, non applicant no.1 and learned A.P.P. for the State. I have carefully perused the findings recorded by Sessions Court. The Sessions Court in para 4 has recorded that there are three Magistrates working at Balapur. On affidavit, it is stated that non applicant no.1 is law graduate and a practicing advocate. The learned Sessions Judge further observed that learned Advocate Mr. Karale submitted that in fact complainant-non applicant no.1 failed at 4th year law examination and he has tried to produce the mark-sheet of the non applicant no.1 on record to show that he is not a practicing advocate nor can he practice before any court since he is not law graduate. The Court further observed that there is nothing to show that the learned Magistrate was seen playing volleyball with N.A. No.1. The case is now at the 6 stage of particulars i.e. for explaining substance of allegations. It would be improper to transfer the case on such petty ground, where all the allegations made are not within the personal knowledge of the applicant but, rather they are based on hear- say that the had learnt from other sources. 9. The controversy raised in this application is certainly relates to facts. Even on careful perusal of the affidavit-in-reply filed by non applicant no.1 and findings recorded by the Sessions Court one thing is clear that non applicant no.1 was not practicing advocate at the relevant time. He has stated in his affidavit that he is waiting to get Sanad from Bar Council of Maharashtra and Goa. Even if it is assumed that what is stated is correct, fact remains that the applicant was not practicing Advocate at the relevant time. It is to be seen that the controversy raised in the application relates to facts and no substantial question of law, muchless any question of law is raised in the present application. The application raises disputed question of facts. Therefore, it would be unjust to exercise the jurisdiction under Article 482 of the Code of Criminal Procedure in the present case. 7 In view of above, the Criminal Application is, therefore, rejected. Criminal Applications, if any pending, shall stand disposed of. JUDGE kahale