IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.18829 of 2008 VEENA DEVI Versus THE STATE OF BIHAR & ANR ----------- 04 05.01.2009 Petitioner has approached this court seeking an order for transfer of complaint case no.2467(C)/2006 from the court at Patna to any other court of competent jurisdiction at Muzaffarpur. It appears the petitioner was made an accused under Sections 420,418 of the Penal Code and Section 138 of N.I. Act. As per allegation in the complaint the petitioner is said to have cheated a sum of Rs. 15,00,000/- ( Fifteen lakh) of the complainant. Records further indicate that cognizance of the offence was taken by the learned court below which was challenged by filing Cr. Misc. No.2866/2007 before this Hon’ble court. The said application was ultimately dismissed on 20.11.2007. Thereafter it appears the petitioner has filed the present application seeking transfer of the case. The main grounds for seeking transfer of the case have been set out in paragraph Nos. 5 and 6 of the application which read thus: 5. That the following facts are borne out from the Complaint:- (a) “From 28.12.2005 to 13.05.2006 books worth Rs. 15,23,329=50 was supplied. (b) As part discharge of the said liability the petitioner issued a cheque for Rs. 12,00,000/- in favour of the O.P.No- 2 1. (c) The said cheque dishonored due to “insufficient fund”. (d) Notice was sent on 07/07/2006. (e) No reply to the notice was received by the O.P.No.-1. (f) No payment was made by the petitioner to the O.P.No-1, after dishonour of the cheque. 6 That no payment has been made by the petitioner to the O.P.No-1 against the aforesaid outstanding although the supply started as early as 28/12/2005 and it is almost three years now.” In support of the said stand the petitioner has enclosed a medical certificate placed at annexure-2 which indicates that the petitioner suffers disability upto 40%. The power of this court for transfer of cases and appeals is set out in Section 407 of the Code of Criminal Procedure which reads thus: “Power of High Court to transfer cases and appeals:- (1) Whenever it is made to appear to the High Court- (a) that a fair and impartial inquiry or trial can not be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise; or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is 3 expedient for the ends of justice, it may order- (i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial of to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. 4 (3) Every application for an order under Sub-Section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under Sub-Section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least-twenty- four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose: Provided that such stay shall not affect the subordinate Court’s power of remand under Section 309. 5 (7) where an application for an order under Sub- Section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case. (8) When the High Court orders under Sub-Section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this Section shall be deemed to affect any order of Government under Section 197.” Petitioner has invoked the jurisdiction of the court primarily on the ground that it will tend to general convenience of the parties or the witnesses. It is settled law that convenience of one party is not the sole criteria for seeking any transfer of the case/trial/appeal. Moreover, this court, on consideration of the materials placed before it is not satisfied that the petitioner is unable to appear before a court where the trial is pending. Learned counsel for the Opposite parties referring to statements made in the counter affidavit has submitted that this is nothing but an attempt to protract the trial. It has further been 6 submitted that the petitioner had earlier appeared before the trial court. It has further been submitted that the law amply provides provision dispensing with the personal appearance of the accused. Having regard to the facts emanating from the records, this court is not satisfied that this application is a bonafide application. Accordingly, the application stands dismissed. Sym ( Kishore K. Mandal, J.)