1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO No. 165 of 2011 . Judgment reserved on 24.11.2011. Date of decision: 01.12.2011. R.K.Raheja & Anr. ......Petitioners. Versus Mohammad Salim & Anr. ......Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioners : Mr. Janesh Mahajan, Advocate. For the Respondents : Mr. Subhash Sharma, Advocate for Respondent No.1. Ms. Ruma Kaushik, Addl.A.G.with Mr. J.S.Rana, Asstt. A.G.for Respondent No.2. Kuldip Singh , Judge. The petitioners have filed this petition under Section 407(2) Cr.P.C. for transferring Criminal Complaint No. 195/3 of 2010, titled 'Mohammad Salim Versus M/s Silver Bell Appliance' for disposal from the Court of Judicial Magistrate Ist Class, Nalagarh, to the Court of Chief Judicial Magistrate, Solan, or Judicial Magistrate Ist Class, Solan, or Additional Chief Judicial Magistrate, Kandaghat, Camp at Solan, or Additional Chief Judicial Magistrate, Kasauli or Judicial Magistrate Ist Class, Kasauli. 2. The facts , in brief, as per petitioners are that petitioners 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 had taken on rent premises of respondent No.1 for running unit of manufacturing Geysers. The petitioners occupied the premises in April, 2007, on the basis of an agreement and thereafter they started manufacturing Geysers, the business was under the name and style of 'M/s Silver Bell Appliances'. 3. The relations between petitioners and respondent No.1 were cordial. The petitioners left for Delhi in January, 2009, as the viability of running the unit of manufacturing Geysers was not feasible at Nalagarh. The respondent No.1 was informed accordingly. The respondent No.1 assured petitioners that they should not leave, he would not rent out the premises and petitioners can again start the unit when they will be comfortable financially. 4. The petitioners had no reasons to doubt respondent No.1, petitioners handed over the keys of the premises and the material was left in the premises with the consent of the respondent No.1. It was agreed that in case petitioners would not be able to come back, the respondent No.1 will make arrangement to send the material to the petitioners. The respondent No.1 assured petitioners to leave behind material in his custody. 5. The petitioners paid all the dues to respondent No.1 till the premises remained in their occupation. The petitioners ultimately told respondent No.1 that they will not be in a position to re-start the business. In September, 2009, petitioners were asked by respondent No.1 to take their material stored by them. The petitioners came with truck to load the stock, but respondent No.1 did not allow the petitioners to take the material. He wanted to extract money since there was nothing 3 reduced in black and white regarding the handing over of possession. 6. The petitioners in order to buy peace handed over cheque No. 007417 dated 21.09.2009 for ` 25,000/- drawn at Federal Bank Limited ,Branch New Delhi, Rohini. The petitioners requested the respondent No.1 to present the cheque when instructed. However, the respondent No.1 contrary to the request of petitioners presented the cheque on 22.09.2011 which was returned with note 'Funds Insufficient'. The respondent No.1 informed the bouncing of cheque to petitioners telephonically, petitioners immediately got bank draft of ` 25,000/- bearing No. 641357 dated 29.09.2009 drawn at Federal Bank Limited,Rohini Branch, payable at Chandigarh Branch. 7. The respondent No.1 got issued notice dated 21.10.2009 under Section 138 of the Negotiable Instruments Act, 1881, (for short Act). The respondent No.1 had already received the amount of the cheque on 07.10.2009. The notice was replied that the amount has already been paid. However, respondent No.1 filed Criminal Complaint No. 193/3 of 2010 in the Court of Judicial Magistrate Ist Class, Nalagarh and the petitioners have been summoned by Judicial Magistrate under Section 138 of the Act. The petitioners put their appearance through counsel on 05.10.2010 and moved an application for exemption firstly on their being away on business tour, secondly on medical ground, since petitioner No.1 is a patient of vertigo and hyper tension. The application was rejected and non-bailable warrants were got issued on 29.12.2010. The respondent No. 1 on 18.10.2010 telephonically threatened the petitioners with life. A report to this effect was lodged at Police Station, Prashant Vihar, against the respondent No.1. 4 8. The petitioners despite threat got non-bailable warrants recalled on 02.12.2010, the petitioners were illegally detained. The petitioners are being harassed and intimidated by respondent No.1 and fear worse if they again visit Nalagarh. It has been stated that respondent No.1 is a transporter and ruffian. The petitioners filed Cr.MMO No.234 of 2010 for quashing complaint instituted against them under Section 138 of the Act. It has been stated that on 03.03.2011 this Court has directed that in case petitioners have any complaint against respondent No.1, they should immediately approach the Sessions Judge in the pending petition where the petitioners have made a prayer for transfer of he proceedings. It has been stated that Sessions Judge has fell in grave error that now there is no threat, whereas, source of threat was respondent No.1, who continues to extend the threat. It has been stated that Sessions Judge has not properly appreciated the material on record and has erred in not transferring the case as prayed by the petitioners. There is a threat to lives of petitioners. The prayer has been made for setting aside the order dated 10.08.2011 passed by Sessions Judge, Solan, in case No. 122-S/4 of 2010 in transferring complaint No. 195/3 of 2010 as noticed above. 9. I have heard learned counsel for the parties. The petitioners as per their stand have given long history in the petition. The whole of the history of the case as narrated in the petition is not relevant. The point in issue is whether petitioners have made out a case for transfer of complaint outside Nalagarh Court. It has been stated in the petition that relations between the petitioners and respondent No.1 were cordial. It has been alleged that claim of respondent No.1 in the complaint is not 5 tenable. The respondent No. 1 has already received the amount of the cheque on 07.10.2009. The respondent No.1 on 18.10.2010 telephonically threatened the petitioners with life. A report to this effect was lodged in Police Station, Prashant Vihar against respondent No.1. The petitioners are being harassed and intimidated by respondent No.1 and they fear worse if they will visit Nalagarh. The respondent No.1 is a transporter and ruffian. 10. The Sessions Judge in the order dated 10.08.2011 has observed that petitioners have taken the plea that respondent No.1 is a close friend of Mr. Chandershekhar,Superintendent of Police Baddi. On 02.12.2010 the petitioners were stopped by the Nalagarh police and taken to Police Station, Nalagarh, where they were detained for two hours. The police took signatures of petitioners on some blank papers so as to get the alleged liability of cheque admitted, but the petitioners refused to do so. This has been done due to influence and at the instance of respondent No.1. The petitioners have shown apprehension that in case they will go to Nalagarh, they will be involved in some false case by respondent No.1 in connivance with Superintendent of Police, Baddi. 11. The petitioners have filed the transfer application before the Sessions Judge on 10.12.2010. It has been recorded in the order dated 10.08.2011 that Superintendent of Police,Baddi, alleged close friend of respondent No.1 has already been transferred long back. This observation of the Sessions Judge has not been contradicted nor argued on behalf of petitioners to be wrong. Therefore, the foundation of the transfer application that petitioners are being harassed at the instance of Superintendent of Police, Baddi, a close friend of respondent No.1 is not 6 available to the petitioners. 12. The FIR lodged by petitioners at Police Station, Prashant Vihar, will be dealt with in accordance with law. The parties during the pendency of this petition had shown their intention to compromise the matter and on 17.10.2011 the case was specifically adjourned for this purpose on the request of the parties, however, the compromise did not materialize. The allegations of the petitioners that respondent No.1 is a transporter and ruffian are too vague. The petitioners filed Cr.MMO No. 234 of 2010 for quashing of complaint which was disposed of on 03.03.2011. This Court in the judgment dated 03.03.2011 has observed that in case the petitioners have any complaint against respondent therein they should immediately approach the Sessions Judge in the pending petition where the petitioners have made prayer for transfer of these proceedings. It has been stated by learned counsel for respondent No.1 that petitioners did not approach Sessions Judge after 03.03.2011 bringing to his notice any alleged mis-conduct of respondent No.1. 13. The learned counsel for the petitioners has relied Nahar Singh Yadav and another versus Union of India and others (2011) 1 SCC 307, the Supreme Court has held that an order of transfer of trial is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about the proper conduct of a trial. This power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial. The Supreme Court has further held that broad factors which could be kept in mind while considering an application for transfer of the trial are: 7 (i) when it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due the lackadaisical attitude of the prosecution; (ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant; (iii) comparative inconvenience and hardships likely to be caused to the accused, the complainant/the prosecution and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and non-official witnesses; (iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trail because of the accusations made and the nature of the crime committed by the accused; and (v) existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere either directly or indirectly with the course of justice. 14. On facts, the petitioners have miserably failed to bring their case for transfer under any factor mentioned above. It appears the petitioners are delaying the decision in the complaint, first they filed petition for quashing of the complaint and thereafter they filed transfer application before the Sessions Judge for transferring the complaint which was dismissed by the Sessions Judge on 10.08.2011. Now, petitioners have filed present petition for transferring the complaint from Nalagarh Court to some other Court. The Sessions Judge has rightly appreciated the material on record. There is no infirmity in the order dated 10.08.2011. There is no merit in the petition. 15. In view of above discussion, petition is dismissed, so also 8 the all pending applications. The parties through their counsel are directed to appear before the Court below on 22.12.2011. ( Kuldip Singh ), December 1, 2011 Judge. (Krt)