APPLN.4140-09 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 4140 OF 2009 Mr. Sharad Nemani ...Applicant Vs. State of Maharashtra & Ors. ...Respondents *** Mr. Milan Desai i/b Prashant Parsurampuria, for the Applicant. Mr. P. S. Hingorani, APP for the Respondent-State. *** CORAM: V. M. KANADE J. DATE : OCTOBER 5, 2010 P.C. 1. Heard the learned counsel for the applicant. By this application, the applicant is seeking transfer of the case which is pending in the Court of J.M.F. Bhivandi Court to the Court at Mumbai. The said relief is claimed on two grounds. 2. Firstly, it is submitted that the entire cause of action has arisen in Mumbai and therefore, the Bhivandi Court has no jurisdiction to try and decide the said dispute. The said submission has only to be stated for the purpose of being rejected. The criminal complaint was filed APPLN.4140-09 - 2 - in the year 1998. The trial has already begun and the complainant is being examined and cross-examined. The complainant has adduced his evidence. Perusal of the complaint clearly discloses that part of the cause of action has arisen in Bhivandi. In any case, the objection regarding the territorial jurisdiction of the Court has to be raised at the first available opportunity. 3. Secondly, the complaint is pending since last ten years and this application has been filed at this belated stage. Perusal of the complaint clearly discloses that part of the cause of action has arisen at Bhivandi, which is evident from the averments in paragraph 2 of the complaint wherein it is specifically mentioned that the accused came to the house of the complainant in the year 1994 and collected various shares and the amount of Rs.2,09,000/-. It clearly discloses that the complaint was rightly filed in the Bhivandi Court. 4. The transfer sought by the applicant for the reason that he is not likely to get justice in the Bhivandi Court, as the learned Judge is passing orders in favour of the son of the complainant. 5. So far as second ground is concerned, it is an admitted position that if an application for transfer is made under S. 407 Cr. P. C., the applicant has to move first to the Principal District Judge and APPLN.4140-09 - 3 - thereafter this Court can entertain the such an application. Admittedly, the such application has not been preferred before the District Court. Hence, it is not possible to entertain this application under S. 407 Cr.P. C. ground also. 6. On the last occasion, after an ad-interim relief was granted by this Court, the complainant’s son who is power of attorney holder appeared before this Court and pointed out that the applicant has suppressed the material facts from this Court. He submitted that he has not pointed out that the application for discharge was filed in the trial Court by the other co-accused, which application was dismissed and this Court also did not entertain the petition which was also field by the co- accused. The Special Leave Petition filed against the said order was not admitted. Though it is submitted that there was no question of disclosing the said facts, since the petitioner has not preferred this application for quashing the complaint, yet the fact remains that it was duty of the applicant to have pointed out these facts to the Court. He submitted that he has not pointed out that the application for discharge was filed in the trial Court by the other co-accused which application was dismissed and this Court did not entertain the petition which was filed by the co- accused and also the Special Leave Petition filed against the present APPLN.4140-09 - 4 - order was not admitted. Though it is submitted that there was no question of disclosing the said facts since the applicant has not preferred the application for quashing the complaint. Yet the fact remains that it was duty of the applicant to have pointed out these facts to this Court. It is therefore, not possible to entertain present application, by this Court. The criminal application is therefore, dismissed. [ V. M. KANADE J.]