AI Drafter 
TaxTMI 
TaxTMI 
2025 (3) TMI 374
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....the court of Metropolitan Magistrate, Coimbatore, Tamil Nadu, essentially on the ground that no cause of action could be said to have arose for the bank to lodge the complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, the N.I. Act) in Chandigarh. 4. In the memorandum of the transfer petition the following has been pleaded: "That the Petitioner herein seeks the transfer to Metropolitan Magistrate Court, Chennai, Tamil Nadu on the following grounds: (a) Because in the facts and circumstance of the present case, the transaction between the Petitioner and the Respondent wholly happened in Coimbatore and the Courts in Coimbatore alone will have the jurisdiction to entertain the present criminal complaint. The Petitioner holds a savings Account in the Respondent's Coimbatore Branch and the loan was also processed in the same branch. All the previous EMI were also deducted from her Bank Account in Coimbatore and credited to the loan account maintained in the Coimbatore Branch. Therefore, the Court in Chandigarh will have no jurisdiction to entertain the present Criminal Complaint. (b) Because in the f....
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....recovery of entire loan amount. The Respondent and its employees have colluded and sold the properties of the Petitioner without any information. The Petitioner has already filed appropriate proceedings against the Respondent in Coimbatore. In the said circumstances, the Criminal Complaint under Section 138 of Negotiable Instruments Act is abuse of process of law." ORDER PASSED BY THIS COURT 5. On 22nd July 2024, this Court passed the following order: "Mr. Nikhil Goel, learned senior counsel appearing for the petitioner submits that the petitioner concern is engaged in the business of producing coconut oil, selling coconut oil and its byproducts and is situated at Coimbatore; that the petitioner availed over-draft limits and terms from the respondent-Bank at its R.S. Puram branch at Coimbatore; that a loan was granted against the equitable mortgage of properties located at Coimbatore and the money was also disbursed at Coimbatore. The learned senior counsel submits that only for the presentation of the cheque the Bank has proceeded to Chandigarh. Issue notice, returnable in four weeks. In the meantime, there shall be stay of further proceedings in Complaint Case No.4....
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.... is used in all the three codes is "expedient for the ends of justice" and it is this expression alone which is sought to be invoked by the Petitioner. D. The undisputed facts from Transfer Petition (Crl.) No. 608 of 2024 may kindly be noticed. Some of these facts are recorded in the order issuing notice dated 22.07.2024 - (a) The Petitioner is a proprietorship concern which deals with production and distribution of coconut oil and its byproducts. (b) The Petitioner firm had taken overdraft facility from the Respondent Bank vide sanction letter dated 19.03.2015 (pg. 6 of Crl. MP No. 155078 of 2024). This was extended till 2078. The Bank's correspondence address was recorded Transfer Petition (Crl.) No. 608 of 2024 Page 8 of 87 therein as Egmore, Chennai branch and had nothing to do with Chandigarh. (c) For this overdraft facility, several collaterals in the form of land were taken apart from a lien which was created on a Fixed Deposit of Rs. 25 lakhs. The 11 properties which were taken as collateral are all lands located in the area of Kangeyam in Tiruppur district (bifurcated from the erstwhile Coimbatore district) of Tamil Nadu. (d....
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....n given till date. The only response in the Counter Affidavit filed is in paragraph 5 which records that the Bank's collection account is located in Chandigarh. This stand of the Bank might justify the existence of jurisdiction at Chandigarh but does not answer/explain the reason for filing a complaint there, especially when one set of legal proceedings viz. under SARFAESI Act were undertaken within the jurisdiction of Tamil Nadu. ii. As submitted earlier, this is not an issue pertaining to territorial jurisdiction or an issue of convenience of the accused, but having undertaken all the proceedings including initiation of one set of litigation within Tamil Nadu, it is unjust for the Respondent Bank to choose an unrelated jurisdiction merely because it has an option of more than one places where a complaint can be lodged. iii. The parameters of 'expedient for the ends of justice' should take into account a situation where availability of more than one jurisdiction is misused for no extra benefit to the Complainant. iv. The legislative intent of Section 142A also contemplates that holder in due course is not allowed to misuse the availability of mul....
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....ch of this Hon'ble Court in Harman Electronics (P) Ltd. v. National Panasonic India (P) Ltd., (2009) 1 SCC 720, para 21 had also noted that - "We cannot, as things stand today, be oblivious of the fact that a banking institution holding several cheques signed by the same borrower can not only present the cheque for its encashment at four different places but also may serve notices from four different places so as to enable it to file four complaint cases at four different places. This only causes grave harassment to the accused. It is, therefore, necessary in a case of this nature to strike a balance between the right of the complainant and the right of an accused vis-a-vis the provisions of the Code of Criminal Procedure." x. For interpreting the phrase "expedient for the ends of justice", it is worthwhile to mention this Hon'ble Court's interpretation of the phrase "justice, equality and good conscience". In M. Siddiq (Ram Janambhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1, this Hon'ble Court traced the origins of the phrase in Roman law. Paragraphs 1000 - 1022 deal with the origin of this phrase and broadly refers to a situation where adheren....
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....rit in his transfer petition the same may be allowed and the proceedings be transferred from the UT of Chandigarh to the State of Tamil Nadu. WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT BANK: 9. The written submissions filed by the respondent Bank read as under: "A. It is submitted that the Respondent is Banking company within the Banking Regulation Act, 1949. On the basis of representations made by the petitioner, the respondent extended credit facilities to the petitioner and its group companies. The petitioners however defaulted on repayments and as of July 2022, owed a sum of more than Rs. 34.14 Cr. to the Respondent. B. The Respondent Bank filed a Complaint under Section 138 of the Negotiable Instrument Act (hereinafter referred to as 'the said Act') in accordance with law before the competent court within whose jurisdiction the branch of the bank where the payee maintains the account is situated. In this regard it is submitted the Cheque was presented at Respondent's Chandigarh Branch for the reason that the routing/collection account in respect of the subject cheque (in a NPA account) was located at Chandigarh. C. Significantly, the petit....
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....y this Hon'ble Court under Section 406 of the Cr.P.C. F. It is submitted that the Virtual Facility is available in courts in Chandigarh and the option to attend the hearing virtually is always available to the Petitioner. Instead of approaching Trial Court and moving an application for exemption therein and satisfying the Trial Court regarding the necessity of such exemption, the Petitioner has directly approached this Hon'ble Court. G. It is submitted that the cheque bouncing cases filed by the respondent in Chandigarh were prior in time to the original application filed before the DRT, Coimbatore. H. It is further submitted that there are a batch of cases pending in Chandigarh. The Respondent has filed all cases arising out of the transaction at one single place viz Chandigarh. Thus, no inconvenience could have been caused to the Petitioner. I. It is further submitted that there are various cases pending at Chandigarh District Court arising out the same transaction in which no Transfer Petition has been filed. It is submitted that there are 23 cases pending in Chandigarh out of which the transfer petition has been filed by the petitioner only i....
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.... Act can be ordered to be transferred from one court to the other in exercise of powers under Section 406 of the Cr.P.C. on the ground of lack of territorial jurisdiction of the court in which the complaint is filed? ii. Assuming that the court in which the complaint filed under Section 138 of the N.I. Act lacks territorial jurisdiction to try the same, then is it permissible for this court in exercise of powers under Section 406 of the Cr.P.C. to transfer the said complaint to the court having territorial jurisdiction to try the offence? iii. Whether the expression "that for the ends of justice, this Court can transfer any criminal case or appeal to any place." in Section 406 Cr.P.C. embraces in itself the lack of territorial jurisdiction of the court to try the offence under Section 138 N.I. Act? 12. Before adverting to the rival submissions canvassed on either side, we must look into a few relevant provisions of the N.I. Act. Section 138 of the N.I. Act reads thus: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any a....
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....a Judicial Magistrate of the first class shall try any offence punishable under section 138. (2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction, - (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated." 14. Section 142-A of the N.I. Act provides for validation for transfer of pending cases. Section 142-A reads thus: "Validation for transfer of pending cases.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or direction of any court, all cases transferred to the court having jurisdiction under sub-section (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that sub-section had been in force ....
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....at the Courts having jurisdiction over the territorial limits wherein any of the five acts, that constitute the components of the offence, occurred would have the jurisdiction to deal with the case and if the five acts were done in five different areas, any one of the Courts exercising jurisdiction in those five areas would have jurisdiction and the complainant could choose any one of those Courts. 7. Thereafter, in Dashrath Rupsingh Rathod v. State of Maharashtra [(2014) 9 SCC 129], a 3-Judges Bench of this Court observed that the return of the cheque by the drawee bank would alone constitute commission of the offence under Section 138 of the Act of 1881 and would indicate the place where the offence is committed. It was, therefore, held that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located, i.e., where the cheque is dishonoured upon presentation and not where the complainant's bank is situated. 8. In this regard, it may be noted that Section 142 of the Act of 1881, titled 'Cognizance of Offences', provided that, notwithstanding anything contained in the Criminal Procedure Code....
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....t within whose jurisdiction the branch of the Bank where the cheque was delivered for collection, through the account of the payee or holder in due course, is situated. The newly inserted Section 142-A further clarifies this position by validating the transfer of pending cases to the Courts conferred with such jurisdiction after the amendment. 12. The later decision of this Court in Bridgestone India Private Limited v. Inderpal Singh [(2016) 2 SCC 75] affirmed the legal position obtaining after the amendment of the Act of 1881 and endorsed that Section 142(2)(a) of the Act of 1881 vests jurisdiction for initiating proceedings for an offence under Section 138 in the Court where the cheque is delivered for collection, i.e., through an account in the branch of the bank where the payee or holder in due course maintains an account. This Court also affirmed that Dashrath Rupsingh Rathod (supra) would not non-suit the company in so far as territorial jurisdiction for initiating proceedings under Section 138 of the Act of 1881 was concerned." ( Emphasis supplied ) 17. In Yogesh Upadhaya (Supra), this Court also considered the effect of the non obstante clause in Sectio....
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.... 14. In the case on hand, as the six complaint cases pertain to the same transaction, it would be advisable to have a common adjudication to obviate the possibility of contradictory findings being rendered in connection therewith by different Courts. As four of the six cases have been filed by the respondent company before the Dwarka Courts at New Delhi and only two such cases are pending before the Courts at Nagpur, Maharashtra, it would be convenient and in the interest of all concerned, including the parties and their witnesses, that the cases be transferred to the Dwarka Courts at New Delhi." 18. Thus, in Yogesh Upadhaya (supra), this Court took note of K. Bhaskaran v. Sankaran Vaidhyan Balan reported in (1999) 7 SCC 510, wherein it was held that an offence under Section 138 of the N.I. Act has five components: (i) drawing of the cheque, (ii) presentation of the cheque to the bank, (iii) returning of the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and (v) failure of the drawer to make payment within 15 days of the receipt of the notice. ....
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....he payee or holder, in due course, maintains an account. 24. Therefore, the Court said that the institution of the first two complaint cases before the Courts at Nagpur would be in accordance with the changed legal position after the amendment came into force. However, it rejected the contention that the non obstante clause in Section 142(1) of the NI Act would override Section 406 CrPC and that it would not be permissible for this Court to transfer the said complaint cases. 25. The Court noted that the non obstante clause was already present in the original Section 142(1) and was not introduced by way of the amendments in the year 2015, along with Section 142(2). The non obstante clause merely has reference to the manner in which cognizance is to be taken in an offence under Section 138. The same must not be construed to mean that the power of this Court to transfer pending criminal proceedings under Section 406 CrPC stands abrogated thereby in respect of an offence under Section 138 of the NI Act. 26. After placing reliance on A.E. Premanand v. Escorts Finance Ltd., reported in (2004) 13 SCC 52, the Court had held that notwithstanding the non obstante clause in Section 1....
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....ircumstances of the case." 29. The present section corresponds to Section 527 of the old Cr.P.C. The Cr.P.C. clothes this Court with the power under Section 406 to transfer a case or appeal from one High Court or a Court subordinate to one High Court to another High Court or to a Court subordinate thereto. The expression therein "expedient for the ends of justice" assumes significance. 30. The power to transfer vested in the High Court, so far as the Cr.P.C. is concerned, is dealt with and was intended by the Legislature to be dealt with solely by Section 407 (Section 526 of the old Cr.P.C.). On the other hand, Section 406(1) (Section 527(1) of the old CrPC) clearly implies that it is only the Supreme Court that has the power to transfer a case pending in a Court subordinate to one High Court to be tried by a Court subordinate to another High Court. 31. A case is transferred by virtue of the powers under Section 406 if there is a reasonable apprehension on the part of a party to a case that justice will not be done. There, however, must be reliable material from which it can be inferred that there are impediments that are interfering or likely to interfere, either directly....
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....e taking cognizance, as Section 201 uses the words "Magistrate who is not competent to take cognizance" and (b) that the power is limited only to complaints, as the word "complaint", as defined by Section 2(d), does not include a "police report". 19. Chapter XIII of the Code of Criminal Procedure, 1973 contains provisions relating to jurisdiction of criminal courts in inquiries and trials. The Code maintains a distinction between (i) inquiry; (ii) investigation; and (iii) trial. The words "inquiry" and "investigation" are defined respectively, in clauses (g) and (h) of Section 2 of the Code. 20. The principles laid down in Sections 177 to 184 of the Code (contained in Chapter XIII) regarding the jurisdiction of criminal courts in inquiries and trials can be summarised in simple terms as follows: 20.1. Every offence should ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. This rule is found in Section 177. The expression "local jurisdiction" found in Section 177 is defined in Section 2(j) to mean "in relation to a court or Magistrate, means the local area within which the court or Magistrate may exercise all....
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.... 20.12. An offence which includes the possession of stolen property, may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person, having knowledge that it is stolen property. (Nos. 8 to 12 are found in Section 181) 20.13. An offence which includes cheating, if committed by means of letters or telecommunication messages, may be inquired into or tried by any court within whose local jurisdiction such letters or messages were sent or received. 20.14. An offence of cheating and dishonestly inducing delivery of the property may be inquired into or tried by a court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person. 20.15. Some offences relating to marriage such as Section 494 IPC (marrying again during the lifetime of husband or wife) and Section 495 IPC (committing the offence under Section 494 with concealment of former marriage) may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the offender last resided with the spouse by the first marriage. (Nos. 13....
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....lows: "461. Irregularities which vitiate proceedings.-If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely- (a)-(k) *** (l) tries an offender: *** his proceedings shall be void" 24. Then comes Section 462, which saves the proceedings that had taken place in a wrong Sessions Division or district or local area. But this is subject to the condition that no failure of justice has occasioned on account of the mistake. Section 462 reads as follows: "462. Proceedings in wrong place.-No finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong Sessions Division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice." 25. A cursory reading of Sections 461(l) and 462 gives an impression that there is some incongruity. Under clause (l) of Section 461 if a Magistrate not being empowered by law to try an offender, wrongly tries him, his proceedings shall be voi....
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....r Third Class. Though the entire trial in that case took place before a Magistrate of Second Class, he was conferred with the powers of a Magistrate of First Class, before he pronounced the judgment. This Court held that the proceedings were void under Section 530(p) of the Code of Criminal Procedure, 1898 (as it stood at that time). It is relevant to note that Section 461(l) of the 1973 Code is in pari materia with Section 530(p) of the 1898 Code. 30. What is now clause (a) of Section 26 of the 1973 Code, is what was Section 28 of the 1898 Code. The only difference between the two is that Section 28 of the 1898 Code referred to the eighth column of the Second Schedule, but Section 26(a) of the 1973 Code refers to the First Schedule. Similarly, clause (b) of Section 26 of the 1973 Code is nothing but what was Section 29 of the 1898 Code. 31. What is significant to note from the 1898 Code and the 1973 Code is that the question of jurisdiction dealt with by Sections 28 and 29 of the 1898 Code and Section 26 of the 1973 Code, is relatable only to the offence and not to the offender. The power of a court to try an offence is directly governed by clauses (a) and (b) of....
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....Purushottamdas Dalmia v. State of W.B. [Purushottamdas Dalmia v. State of W.B., AIR 1961 SC 1589 : (1961) 2 Cri LJ 728] to point out that there are two types of jurisdictional issues for a criminal court, namely, (i) the jurisdiction with respect of the power of the court to try particular kinds of offences, and (ii) its territorial jurisdiction. 35. It was specifically held by this Court in Raj Kumari Vijh [Raj Kumari Vijh v. Dev Raj Vijh, (1977) 2 SCC 190 : 1977 SCC (Cri) 294 : AIR 1977 SC 1101] that the question of jurisdiction with respect to the power of the court to try particular kinds of offences goes to the root of the matter and that any transgression of the same would make the entire trial void. However, territorial jurisdiction, according to this Court "is a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused ... and the convenience of the witnesses who have to appear before the Court". (SCC p. 194 para 7) 36. After making such a distinction between two different types of jurisdictional issues, this Court concluded in that case, that where a Magistrate ha....
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....he issue of territorial jurisdiction, lead evidence on questions of fact that may fall within the purview of Sections 177 to 184 read with Section 26 of the Code and invite a finding. With the above observations the transfer petitions are dismissed. There will be no order as to costs." 33. Thus, this Court said the following: (i) the issue of jurisdiction of a court to try an "offence" or "offender" as well as the issue of territorial jurisdiction, depend upon facts established through evidence; (ii) if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various rules enunciated in sections 177 to 184 of the Code; and (iii) these questions may have to be raised before the court trying the offence and such court is bound to consider the same. 34. While jurisdiction of a civil court is determined by (i) territorial and (ii) pecuniary limits, the jurisdiction of a criminal court is determined by (i) the offence and/or (ii) the offender. But the main difference between the question of jurisdiction raised in civil cases and the question of jurisdiction arising in criminal cases, is two-fold i.e.: CIVIL COURT ....
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....ce' only once, namely in clause (a), but uses the word "offender" twice namely in clauses (l) and (m). 38. Therefore, it is clear that if an offender is tried by a Magistrate not empowered by law in that behalf, his proceedings shall be void under Section 461. Section 462 does not make the principle contained therein to have force notwithstanding anything contained in Section 461. 39. Hence, the jurisdiction of a criminal Court is normally relatable to the offence and in some cases, to the offender, such as cases where the offender is a juvenile (section 27) or where the victim is a women [the proviso to clause (a) of section 26]. But Section 461(l) focuses on the offender and not on the offence. The saving clause contained in Section 462 of the Code of 1973 is in pari materia with Section 531 of the Code of 1898. 40. Considering the aforementioned scheme of CrPC, the Court held that the words "tries an offence" are more appropriate than the words "tries an offender" in section 461 (l). This is because, lack of jurisdiction to try an offence cannot be cured by section 462 and hence section 461, logically, could have included the trial of an offence by a Magistrate, not emp....
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....ses as one of the criteria in determining whether a transfer should be made. And in the present case, I took into account the same element in considering the application of the doctrine of forum non conveniens. In so doing, I did not weigh the convenience of the defendants only, but that of the Government also. The conclusion was arrived at after a balancing of conveniences. This is of the very essence of the judicial process in any matter which calls for the exercise of discretion. Indeed, I wrote: "A court of equity should aim to balance societal and individual interest and to [41] maintain the proper equilibrium between private rights and public weal." *743 The transfer provision which concerns us here depends on discretion for its application, as do the kindred provision in the criminal cases and the doctrine of inconvenient forum. B Should the Discretion be Exercised? Having determined that the transfer provision is applicable to this litigation, our next inquiry is whether the discretion should be exercised under the facts in the case. The factual situation did not change while the matter was before the Supreme Court. It is the sam....
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....counsel for the Government intimated at the hearing that no resort could be had to such method in resolving the conflicting contentions. I agree that when the section speaks of the convenience "of parties and witnesses, it means that the convenience of both sides must be examined. But I know of no way of applying the requirement to a particular situation than by viewing the facts from both standpoints and giving preference to those which, in the court's opinion, preponderate to such an extent as to make the choice in the interest of justice. Unless the right to choose between conflicting facts or assertions exists, the court could never determine a motion under this section on the facts. For if the mere assertion by the Government of its own convenience and the convenience of its witnesses were sufficient to stay action, we would be confronted with a power to paralyze judicial discretion, beside which the devastating effect of the historic liberum veto ("Nie Pozwalan" "I don't permit") of the Polish nobles in their Diet (1572-1697) would dim into insignificance. As I cannot so interpret the meaning of the section, I conclude that the showing in this case warrants t....
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.... be issued for transfer of any suit, appeal or other proceedings from a High Court or other civil court in one State to another High Court or other civil court in any other State. In order to maintain fair trial, this Court can exercise this power and transfer the proceedings to an appropriate court. The mere convenience of the parties may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Further illustrations are, balance of convenience or inconvenience to the plaintiff or the defendant or witnesses and reasonable apprehension in the mind of the litigant that he might not get justice in the court in which suit is pending. The abovementioned instances are only illustrative in nature. In the interest of justice and to adherence of fair trial, this Court exercises its discretion and order transfer in a suit or appeal or other proceedings." From the above, it is clear that the abovementioned principles have to be kept in mind while dealing with transfer petitions. 10. In the case on hand, except convenience, the petitioners have not pressed into service any other ground for transfer. In ....
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....against (sic after) registration of case and false agreements to sell were prepared in connivance with each other. 14. A perusal of the charge-sheet containing all these details clearly shows that witnesses to be examined are not only from Jaipur, Rajasthan, but also from various other places including Mumbai. Though the petitioners may have a little inconvenience, the mere inconvenience may not be sufficient ground for the exercise of power of transfer but it must be shown that the trial in the chosen forum will result in failure of justice. 15. We have already pointed out that except the plea of inconvenience on the ground that they have to come all the way from Rajasthan no other reason was pressed into service. Even, the request for transfer to Delhi cannot be accepted since it would not be beneficial either to the petitioners or to the prosecution. In fact, the main accused, Respondents 3 and 4 have not filed any petition seeking transfer. In such circumstances, the plea of the petitioners for transfer of the case from the Court of Special Judge, CBI, Greater Mumbai to Special Judge, CBI, Jaipur on the ground of inconvenience cannot be accepted." ( E....
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....SC 845] and an earlier decision of this Court in the case of Gurcharan Dass Chadha v. State of Rajasthan [(1966) 2 SCR 678], he has argued that to sustain allegation of lack of neutrality in trial as a ground for transfer, credible materials will have to be brought before the Court. His argument is that there is no such material that would justify transfer on this ground. Certain decisions have been referred to on behalf of the respondents on the point that civil and criminal proceedings can go on simultaneously in relation to similar transactions. But I do not consider it necessary to deal with these authorities, as that point does not arise in the present proceeding, which is a Transfer Petition. 7. I shall proceed on the basis that the suits being heard by the Delhi High Court would have points which could overlap with those involved in the criminal case pending in the Salem Court. But that very fact, by itself, in my view, would not justify transfer of the said case. Substantial progress has been made in the said complaint before the Salem Court. So far as the subject-criminal case is concerned, the ground of overlapping points in any event cannot justify the petitione....
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....t impartial trial in the Salem Court. 8. Next, I shall turn to the question of the problem of language faced by the petitioner. The respondents seem to be carrying on their business from Salem. In course of hearing before me, no question has been raised as regards territorial jurisdiction of the Salem Court in proceeding with the case, the transfer of which is asked for. Now, complaint is being made that the petitioner not being able to understand Tamil language, the case ought to be transferred to a Court in Delhi. Language was a factor considered by this Court in the case of Sri Jayendra Saraswathy Swamigal (supra), while selecting the Court to which the case was to be transferred. But language was not the criteria based on which transfer of the case was directed. I have briefly discussed earlier the reason for which transfer of the case was directed. The language factor weighed with this Court while deciding the forum to which the case was to be transferred after decision was taken to transfer the case for certain other reasons. 9. Ordinarily, if a Court has jurisdiction to hear a case, the case ought to proceed in that Court only. The proceeding in the Salem C....
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....case pending in the Salem Court are entirely different. In the case of Rajesh Talwar v. CBI [(2012) 4 SCC 217] it was held:- "46. Jurisdiction of a court to conduct criminal prosecution is based on the provisions of the Code of Criminal Procedure. Often either the complainant or the accused have to travel across an entire State to attend to criminal proceedings before a jurisdictional court. In some cases to reach the venue of the trial court, a complainant or an accused may have to travel across several States. Likewise, witnesses too may also have to travel long distances in order to depose before the jurisdictional court. If the plea of inconvenience for transferring the cases from one court to another, on the basis of time taken to travel to the court conducting the criminal trial is accepted, the provisions contained in the Criminal procedure Code earmarking the courts having jurisdiction to try cases would be rendered meaningless. Convenience or inconvenience are inconsequential so far as the mandate of law is concerned. The instant plea, therefore, deserves outright rejection." 11. For these reasons, I dismiss the present transfer petition. Connected applic....
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....or not. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension. 19. Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that the public confidence in the fairness of a trial would be seriously undermined, the aggrieved party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. 20. However, the apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary. Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. The apprehension must appear to the court to be a reasonable one." ( Emphasis supplied ) 49. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not the power under Section 406 Cr.P....
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....y or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touchstone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused cannot dictate when- the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances." ( Emphasis supplied ) 51. In Maneka Sanjay Gandhi (supra), it was also held that as a general rule, it is the complainant who has the right to choose the forum that has jurisdiction over the subject matter and the courts do not interfere with such a right unless circumstances that hamper the ends of justice are brought to the notice of the court by the other party. 52. In the context of our present discussion, it is pertinent to note that that ....
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....lar view in relation to amendment of pleadings. The principles stated in that judgment may aptly be applied generally in relation to the interpretation of provisions of the Code. Strict construction of a procedural law is called for where there is complete extinguishment of rights, as opposed to the cases where discretion is vested in the courts to balance the equities between the parties to meet the ends of justice which would invite liberal construction. (...)" ( Emphasis supplied ) 54. Therefore, when a complainant institutes a case in a court of his choosing and such a court has the territorial jurisdiction to adjudicate the matter then the transfer of such case has to be guided by principles that would achieve the ends of justice. The meaning of "ends of justice" essentially refers to justice for all the parties involved in the litigation. 55. Section 142 of the N.I. Act in clear terms, provides the complainant with the right to lodge a complaint, before a court, within whose jurisdiction, the branch of the bank where the cheque is delivered for collection, is situated. Therefore, the argument of the accused that another court might also be empowered to take cog....
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.... of a serious grievance, the petitioner says that only with a view to harass and cause inconvenience, the Bank lodged the complaint in Chandigarh. The Bank says that the law permits it to file the complaint in Chandigarh as the collection centre of the Bank is in Chandigarh. According to the Bank, the law permits filing of such a complaint at the place where a cheque is delivered for collection at any branch of the Bank of the payee or holder in due course, as the cheque is deemed to have been delivered to the branch of the Bank in which the payee or holder in due course, as the case may be , has an account maintained. 59. There is no challenge before us to the constitutional validity of Section 142(2) of the Negotiable Instrument Amendment Act, 2015 on the ground that the same is ultra vires Article 14 of the Constitution of India. There was a challenge at one point of time to the validity of Section 142(2) of the Amendment Act, 2015 before the High Court of Madras in the case of Refex Energy Ltd. v. Union of India reported in 2019 SCC Online Mad 9941. While dismissing the writ petition and holding that the amendment cannot be said to be ultra vires, the division bench of the H....
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....dishonoured. (vii) The general rule stipulated under Section 177 of Cr.P.C applies to cases under Section 138 of the Negotiable Instruments Act. Prosecution in such cases can, therefore, be launched against the drawer of the cheque only before the Court within whose jurisdiction the dishonour takes place except in situations where the offence of dishonour of the cheque punishable under Section 138 is committed along with other offences in a single transaction within the meaning of Section 220(1) read with Section 184 of the Code of Criminal Procedure or is covered by the provisions of Section 182(1) read with Sections 184 and 220 thereof." 4. In order to resolve the concerns regarding the said judgment, the President of India promulgated an Ordinance, called Negotiable Instruments (Amendment) Ordinance, 2015. The said Ordinance, thereafter, became an Act, namely, Negotiable Instruments (Amendment) Act, 2015. Amendments were made by the Negotiable Instruments (Amendment) Act, 2015, which read as under: "An Act further to amend the Negotiable Instruments Act, 1881. BE it enacted by Parliament in the Sixty-sixth Year of the Republic of India as foll....
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....e court having jurisdiction under subsection (2) of section 142, as amended by the Negotiable Instruments (Amendment) Ordinance, 2015, shall be deemed to have been transferred under this Act, as if that sub-section had been in force at all material times. (2) Notwithstanding anything contained in sub-section (2) of section 142 or sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under subsection (1) and such complaint is pending in that court, all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were delivered for collection or presented for payment within the territorial jurisdiction of that court. (3) If, on the date of the commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same payee or holder in due course, as the case may be, against the same drawer of cheques is pending before different courts, upon the said f....
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....atio in Dashrath Rupsingh (supra). 61. It is clear on a reading of Section 142(2)(a) and the Explanation thereto that, for the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account. 62. A conjoint reading of Section 142(2)(a) along with the explanation thereof, makes the position emphatically clear that, when a cheque is delivered or issued to a person with liberty to present the cheque for collection at any branch of the bank where the payee or holder in due course, as the case may be, maintains the account then, the cheque shall be deemed to have been delivered or issued to the branch of the bank, in which, the payee or holder in due course, as the case may be, maintains the account, and the court of the place where such cheque was presented for collection, will have the jurisdiction to entertain the complaint alleging the commission of offence punishable under Section 138 of the N.I. Act. In that view of the position of law, the wor....