Madhya Pradesh High Court
M/S Brk Food Private Limited A Company ... vs M/S Manoj Trading Company on 1 March, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 1 st OF MARCH, 2024
MISC. CRIMINAL CASE No. 8154 of 2024
BETWEEN:-
M/S BRK FOOD PRIVATE LIMITED A COMPANY
INCORPORATED UNDER COMPANIES ACT 1956
THROUGH ITS DIRECTOR RAHUL KUMAWAT S/O LATE
SHRI BHERULAL KUMAWAT HAVING ITS REGISTERED
OFFICE AT 71 B AND C INDUSTRIAL AREA NO. 1 DEWAS
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANISH DATT - SENIOR ADVOCATE WITH SHRI SHASHANK
SHRIVASTAVA - ADVOCATE)
AND
M/S MANOJ TRADING COMPANY A PROPRIETORSHIP
FIRM THROUGH ITS PROPRIETOR SHRI MANOJ JAIN
S/O KOMAL CHAND JAIN REGISTERED OFFICE AT
NEMI NAGAR COLONY H.NO. 4 POLICE STATION CITY
KOTWALI DAMOH (MADHYA PRADESH)
.....RESPONDENT
This application coming on for admission this day, the court passed the
following:
ORDER
The present petition has been filed under Section 407 of Cr.P.C. for transfer of pending criminal complaint under Section 138 of the Negotiable Instrument Act from a Court of a particular J.M.F.C. to some other Court different from the Court of the particular Judicial Officer. The petitioner is accused in the case under Section 138 of the Negotiable Instrument Act and he has suffered dismissal of application under Section 408 Cr.P.C. filed before the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 3/9/2024 7:07:23 PM 2 Sessions Judge, Damoh.
2. Learned Senior Counsel appearing on behalf of the applicant has referred to the application filed before the Sessions Court and stated that the particular judicial officer is proceeding ahead in the matter with prejudiced mind and the petitioner is not hopeful getting any justice from the Court presided by the particular judicial officer. It is contended by learned Senior Counsel that whenever the applicant files any application invoking provisions of law, then learned trial Court expresses intention of dismissing the application on Board itself without even obtaining reply of the complainant and without hearing arguments of the complainant on the application.
3. It is further contended by learned Senior Counsel that vide order dated 08.11.2023 the trial Court has made the appearance of applicant - accused from next date of hearing at every date compulsory and if the accused wants an exemption from personally appearing before the Court, then the same is allowed only if the Advocate from Indore appears and files an appropriate application and applications filed by the local counsel are not entertained. The local counsel is pressurized to cross-examine the complainant and his witnesses by the trial Court. Thus, it is contended that the applicant has no hopes of justice from learned trial Court looking to conduct of particular presiding officer and the complaint may be transferred to any other Court for adjudication because the applicant has very limited scope to prove his innocence looking to the manner in which the Court is conducting the proceedings. The applicant is not getting proper opportunity to prove his defence before the trial Court and the principle of natural justice and fair trial are being violated.
4. From a perusal of the order passed by the Sessions Court rejecting Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 3/9/2024 7:07:23 PM 3 application under Section 408 Cr.P.C., it appears that the complaint was filed on 02.01.2018 and is pending since last six years. The applicant was served on 25.04.2019, but he appeared on 17.02.2020 before the Court and the case was fixed for evidence from 22.02.2020 onward. In between there was COVID-19 pandemic situation and evidence could not take place till 29.07.2021. Thereafter, the case proceeded for some applications filed by the complainant upto 11.07.2022. Thereafter, the case was fixed for cross-examination of the complainant and the cross-examination was not conduced despite the present applicant being saddled with costs twice on 10.11.2022 and 16.12.2022. Thereafter, on 18.12.2022 some application was filed by the present applicant - accused and the matter proceeded up to 21.04.2023 on that application. Thereafter, adjournment on certain dates was sought on account of non- availability of outstation counsel, who comes down from Indore and then the case was fixed for evidence from 09.08.2023 onward.
5. On 25.10.2023, some application was filed by the present applicant - accused, which was disposed of on 27.10.2023. The Sessions Judge has noted the proceedings of the complaint in detail and has noted that the present applicant has submitted various applications, which have been rejected by the trial Court and also that the present applicant has not cross-examined the complainant as yet and the complaint is now almost six years old.
6. It has also been recorded by the Sessions Court that time is being sought on account of non-availability of outstation counsel, who comes down from Indore and on some dates adjournment is sought for non-availability of local counsel and on some date adjournment is sought for non-availability of outstation counsel. The Sessions Judge has also noted that the case is fairly old and it requires to be decided expeditiously in the interest of justice.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 3/9/2024 7:07:23 PM 47. I have heard learned Senior Counsel for the applicant and perused the documents available on record.
8. The proceedings of the trial Court as mentioned in detail by the Sessions Court in its order rejecting application under Section 408 of Cr.P.C. do indicate that the case is going on since January, 2018 and is now more than six years old. The complainant witnesses have not been cross-examined as yet though the case is being fixed for evidence, even after resumption of physical hearings before the trial Court since July, 2021.
9. The grounds taken in the present petition are that the applications filed by present applicant are summarily dismissed by the trial Court without calling for reply from the respondent and that the trial Court is fixing the dates on very short interval and not accommodating the applicant.
10. The case is admittedly six years old and if the trial Court is giving short dates in such an old matter, no motive can be attributed to the trial Court by the applicant. It is also apparent from the argument placed on record by learned Senior Court for the applicant that applicant has filed certain revisions before the Sessions Court against orders passed by the trial Court in the course of proceedings, but remained unsuccessful and also that he filed M.Cr.C. No.57338/2023 before this Court in the matter of another interlocutory order passed by the trial Court, which was dismissed and was confirmed even upto the Hon'ble Apex Court on 16.02.2024.
11. Thus, it appears that the applicant is hotly contesting each and every interlocutory application filed before the trial Court and it is upto the discretion of the trial Court to call for reply of the other side or not and if the application can be effectively decided even without reply in such old matters and not linger-
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 3/9/2024 7:07:23 PM 5on the matter just for disposal of interlocutory application, no motive can be assigned to the trial judge.
12. As per Section 407, the High Court has having power to transfer a case and appeal, whenever it appears to the High Court that fair and impartial enquiry or trial cannot be held in any subordinate criminal Court and it is this provision of Section 407 (1)(a), which is being sought to be invoked by the applicant in the present case.
13. It is true that fair trial is the right of an accused. In the case of Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204 , the Hon'ble Apex Court held that the purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. If it is shown that public confidence in the fairness of a trial would be serious undermined, any party can seek the transfer of a case under Section 407 Cr.P.C. In the case of Sri Jayendra Saraswathy Swamigal (II) v. State of T.N., (2005) 8 SCC 771 , it has been held by the Hon'ble Apex Court that if there is reasonable apprehension on the part of a party to a case that justice may not be done, then that party may seek transfer of the case.
14. In the case of Santosh and others vs. State of Karnataka passed by High Court of Karnataka in Criminal Petition No.200338/2023, it has been held that :-
"21. The Hon'ble Apex Court in the case of Capt. Amarinder Singh vs. Prakash Singh Badal and others in Transfer Petition (Criminal) No.235/2008, at paragraph Nos.9 to 13 held as under:-
9) In K. Anbazhagan vs. Superintendent of Police & Ors. (2004) 3 SCC 767, this Court had an occasion to consider the transfer of a criminal trial from the State of Tamil Nadu to another State, a two Judge Bench, after going into the factual details, particularly, the change of Government, attitude of the public prosecutor and finding that there is Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 3/9/2024 7:07:23 PM 6 justifiable and reasonable apprehension of miscarriage of justice as well as likelihood of bias, allowed the Transfer petition pending on the file of XIth Additional Sessions Judge (Special Court No. 1) Chennai, State of Tamil Nadu to the State of Karnataka. While directing the transfer this Court permitted the State of Karnataka in consultation with the Chief Justice of the High Court of Karnataka to appoint a senior lawyer having experience in criminal trials as Public Prosecutor to conduct those cases. In the same order, the Court observed that the public prosecutor will be at liberty to apply that the witnesses who have been recalled and cross- examined by the accused, who have resiled from the previous statement, may be again recalled. The Court further observed that the public prosecutor would be at liberty to apply to the Court to have these witnesses declared hostile and seek permission to cross-examine them.
10) In Abdul Nazar Madani vs. State of Tamil Nadu and Anr. (2000) 6 SCC 204, the issue dealt with was for transfer of criminal case from one State to another. In the said decision it was reiterated that the purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of case within the State under Section 407 and anywhere in the country under Section 406 Cr.P.C. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. However, no universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case.
Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. After perusing the figures furnished and considering all the materials, it was concluded that the transfer petitions were totally Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 3/9/2024 7:07:23 PM 7 misconceived and d ismissed the same.
11) In Sri Jayendra Saraswathy Swamigal (II) T.N. vs. State of T.N. & Ors. (2005) 8 SCC 771, this Court has held that if there is reasonable apprehension on the part of a party to a case that justice may not be done, he may seek transfer of the case. It also held that the apprehension and parties must be a reasonable one and the case cannot be transferred on a mere allegation that there is apprehension that justice will not be done.
12) It is a well-established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political mandate of the informant or the complainant. However, if justifiable and reasonable apprehension of miscarriage of justice and likelihood of bias is established, undoubtedly, the proceeding has to be transferred elsewhere by exercise of power under Section 406 Cr.P.C. For a transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice will not be done. It is one of the principles of administration of justice that justice should not only be done but it should be seen to be done. On the other hand, mere allegations that there is apprehension that justice will not be done in a given case does not suffice. In other words, the court has further to see whether apprehension alleged is reasonable or not. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension.
13) Assurance of a fair trial is the first imperative of the dispensation of justice. The purpose of the criminal trial is t o 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 Cr.P.C. 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 Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 3/9/2024 7:07:23 PM 8 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."
15. In the present case, the proceedings of the case as narrated in detail in the order passed by the Sessions Court so also the fact that the case is more than six year old does not indicates that suspicion and apprehension of the applicant that he would not get fair justice at the hands of the present presiding officer, appears to be unreasonable. The apprehension of the applicant that fair and impartial enquiry and trial cannot be held before the trial Court seems to be misplaced.
16. In the case of Mahesh Prasad Sen (Napit) vs. Dhannulal Namdeo passed by this Court on 07.12.2023 in M.P. No.6953/2023, it has been held that:-
"11. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer.
12. In the matters where reckless false allegations are attempted to be made to seek some favourable order, either in a transfer application, or otherwise, the approach of Court must be strict and cautious to find out whether the allegations are bona fide, and, if treated to be true on their face, in the entirety of circumstances, can be believed to be correct, by any person of ordinary prudence in those circumstances. If the allegations are apparently false, strict approach is the call of the day so as to maintain not only discipline in the courts of law but also to protect judicial officers and maintain their self esteem, confidence and above all the majesty of institution of justice.
13. The justice delivery system knows no caste, religion, creed, colour etc. It is a system following principle of black and white, i.e., truth and false. Whatever is unfair, that is identified and given its due treatment and whatever is good is retained. Whoever suffers injustice is attempted to be given justice and that is called dispensation of justice. The Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 3/9/2024 7:07:23 PM 9 prevailing system of dispensation of justice in Country, presently, has different tiers. At the ground level, the Courts are commonly known as "Subordinate Judiciary"
and they form basis of administration of justice. Sometimes it is said that subordinate judiciary forms very backbone of administration of justice. Though there are various other kinds of adjudicatory forums and then various kinds of Tribunals etc. but firstly they are not considered to be the regular Courts for adjudication of disputes, and, secondly the kind and degree of faith, people have, in regular established Courts, is yet to be developed in other forums. In common parlance, the regular Courts, known for appropriate adjudication of disputes basically constitute subordinate judiciary, namely, the District Court; the High Courts and the Apex Court.
17. In the light of the aforesaid settled legal position, upon perusal of the record available in the case, it appears that the petitioner has failed to make out a case for transfer of trial in terms of Section 407 of Cr.P.C.
18. Consequently, the petition being devoid of merits stands dismissed.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 3/9/2024 7:07:23 PM