Andhra Pradesh High Court - Amravati
Podila Koteswara Rao vs The State Of Andhra Pradesh on 28 December, 2023
THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
TRANSFER CRIMINAL PETITION No.15 of 2023
O R D E R:
I have heard learned counsel for the petitioner Mr.Anasuri Eswar Sai as well as learned counsel for Respondent No.2 Mr.Satyam Naidu Golivi.
02. This petition is filed by the petitioner under Section 407 of the Criminal Procedure Code (in short "Cr.P.C"), seeking transfer of C.C.No.147 of 2023 on the file of Special Magistrate Court-II, Visakhapatnam to IV-Additional Chief Metropolitan Magistrate Court, Vijayawada.
03. The case of the petitioner/accused in brief is that:-
The petition is filed by the petitioner seeking transfer of C.C.No.147 of 2023 on the ground that now the petitioner is suffering from serious ill-health as he is suffering from kidney disease and he has to undergo dialysis in frequent intervals. The petitioner submits that due to disorder in function of his kidneys for the past six years, he has forced to undergo dialysis treatment regularly and even now he is attending dialysis session with an interval of couple of days in Sentini Hospitals, Vijayawada, due to 2 that he could not appear before the Court at Visakhapatnam where Respondent No.2 has filed complaint for the offence punishable under Section 138 of Negotiable Instruments Act vide C.C.No.147 of 2023 on the file of Special Magistrate Court-II, Visakhapatnam. He prays to allow the petition.
04. Respondent No.2 filed counter affidavit denying averments in the affidavit of the petitioner. It is the contention of the respondent No.2 that he is also suffering from heart ailment and he suffered with severe chest pain when he was at Trichy, Kerala due to business works and he is suffering from Type-II diabetes. Respondent No.2 submits that after 2015 amendment, it is only the place where the payee-bank, got jurisdiction to entertain the cases filed under Negotiable Instrument Act, accordingly, he filed the case before I-Additional Chief Metropolitan Magistrate Court, Visakhapatnam and thereafter the case transferred to Special Magistrate Court-II, Visakhapatnam and re-numbered as C.C.No.147 of 2023. It is also the contention of respondent No.2 that petitioner instead of appearing before the Court for section 251 Cr.P.C examination trying to drag on the matter with frivolous grounds. He prays to dismiss the petition. 3
05. Learned counsel for petitioner would submit that, now petitioner, who is aged 66 years suffering from serious ill-health due to dis-functioning of his kidneys, he has to undergo dialysis in frequent intervals. He would further submit that to support his contention, petitioner also filed Medical records and filed Medical Certificate issued by District Medical Board to show that petitioner is suffering disability of kidney and liver. He prays to allow the petition.
06. Learned counsel for respondent No.2 would submit that respondent No.2 is also suffering from heart ailment and to support his contention, he filed Medical records of Respondent No.2. He would further submit that petitioner not attended the Court after receiving summons, due to that Non-Bailable warrants were issued and thereafter petitioner made his appearance and NBWs issued against him were recalled, which itself shows that, petitioner able to attend before the Court at Visakhapatnam. He prays to dismiss the petition.
4
07. Now, the point that emerges for consideration of this Court is: -
"Whether there are any grounds to transfer C.C.No.147 of 2023 from Special Magistrate Court-
II, Visakhapatnam to IV-Additional Chief
Metropolitan Magistrate, Vijayawada?"
08. POINT:-
Before going into the merits of the case, it would be beneficial to quote Sec.407 Cr.P.C which reads as under:
"407. 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 cannot 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 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) to any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.5
(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.
(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:
Provide that such stay shall not affect the subordinate Court's power of remand under section 309.
(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 197.6
The Hon'ble Apex Court in Nahar Singh Yadav Vs. Union of India1, at para 29 which reads as under:-
"29. Thus, although no rigid and inflexible rule or test could be laid down to decide whether or not power under Section 406 CrPC should be exercised, it is manifest from a bare reading of subsections (2) and (3) of the said section and on an analysis of the decisions of this Court 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. Some of the broad factors which could be kept in mind while considering an application for transfer of the trial are:
(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 to the lackadaisical attitude of the prosecution;1
(2011) 1 SCC 307 7
(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 nonofficial witnesses;
(iv) a communally surcharged atmosphere, indicating some proof of inability of holding fair and impartial trial 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."
09. In the present case, the Respondent No.2 said to be lend a sum of Rs.25,00,000/- to the petitioner who is admittedly a resident of Vijayawada Town. The petitioner said to be issued cheque for Rs.25,00,000/- on 26.10.2022 for discharging his debt which was drawn on Union Bank of India, Ramvarappadu Circle Branch, Krishna District, which said to be presented by 8 petitioner/respondent No.2 in ICICI Bank, Dwarakanagar Branch, Visakhapatnam which is said to be dishonoured due to reason "funds insufficient". Then Respondent No.2 filed complaint before I-Additional Chief Metropolitan Magistrate Court, Visakhapatnam vide C.C.No.147 of 2022. Now the said case is transferred to Special Magistrate Court-II, Visakhapatnam and re-numbered as C.C.No.147 of 2023. The petitioner is said to be suffering from serious ill-health and to support his contention, he also filed his medical records to show that, in frequent intervals he is undergoing dialysis treatment. The petitioner also placed before this Court copy of Medical Certificate issued by Medical Board certifying that petitioner, who is aged 66 years, is suffering from disability of kidney and liver. As per the contention of learned counsel for respondent No.2, petitioner not attended the Court in C.C.No.147 of 2022 due to that, NBW's were issued against the petitioner. That itself supports the contention of the petitioner that the petitioner is not in a position to attend the court and thereafter as NBWs were issued, he made his appearance and said to be got NBWs recalled. The Second respondent is also complaining that he is suffering from ill-health and to support his contention, he filed Medical records to show that he is suffering 9 from heart ailments. When both parties are complaining that they are suffering from ailments, this court has to weigh which ailment requires continuous monitoring by the Health Expert. As petitioner is suffering from kidney disease, who require dialysis in frequent intervals as per Medical records filed by him, certainly he is not in a position to attend the Court at Visakhapatnam for each and every adjournment. Whereas the ailment of Respondent No.2 can be managed with medicines and he need not visit the hospital in frequent intervals. The second respondent also can represent the Court where the case is transferred with regard to his ailment if he is not able to attend the Court and he can only attend the Court at the time of recording his evidence. Whereas petitioner being accused in C.C.No.147 of 2023 has to make his appearance for each and every adjournment due to that certainly it would be difficult for him to appear for each adjournment before the Court at Visakhapatnam, when he is admittedly staying at Vijayawada and now aged 66 years. There are grounds to consider the request of the petitioner to transfer C.C.No.147 of 2023 on the file of Special Magistrate Court-II, Visakhapatnam to IV-Additional Chief Metropolitan Magistrate Court, Vijayawada. 10
10. In the result, the Transfer Criminal Petition is allowed. C.C.No.147 of 2023 on the file of Special Magistrate Court-II, Visakhapatnam is hereby withdrawn and transferred to IV-Additional Chief Metropolitan Magistrate Court, Vijayawada. Learned Special Magistrate Court-II, Visakhapatnam shall transmit case records to IV-Additional Chief Metropolitan Magistrate Court, Vijayawada duly indexed as expeditiously as possible within a period of two weeks from the date of receipt of orders of this Court in the present petition. Learned IV-Additional Metropolitan Magistrate, Vijayawada shall not insist physical presence of respondent No.2/complainant for each and every adjournment before the Court if he engages a counsel, he can insist his presence whenever he is required or at the time of recording his evidence before the Court. No order as to costs.
Consequently, miscellaneous petitions, if any, shall stand closed. The interim stay granted if any, shall stand vacated.
__________________________ JUSTICE BANDARU SYAMSUNDER Date :28.12.2023.
GRL 11 116 THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER Transfer Criminal Petition No.15 of 2023 Date: 28.12.2023 GRL