Karnataka High Court
A N Penchalaiah vs Nagreddy on 31 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 1533
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.355/2020
BETWEEN:
A.N.Penchalaiah
S/o Nagayya
Aged about 60 years
R/o No.12 Platform Road
Gagman Quarters
Near Krishna Flour Mill
Beside Uday Clinic,
Sheshdripuram
Bengaluru-560 020.
...Petitioner
(By Sri Spoorthy Hegde N., Advocate)
AND:
Nagreddy S/o Yankanna
R/o Village Gogi
Shahapur Taluk
Yadgiri District-585 201.
...Respondent
This Criminal Petition is filed under Section 407 of
Cr.P.C praying to transfer of the C.C.No.470/2018
(PCR No.43/2018) before the Civil Judge and JMFC,
Shahapur, Yadgiri District to Bengaluru, Jurisdictional
Court for kind consideration and subordinate to this
Court.
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This Criminal Petition coming on for orders this
day, the Court made the following:
ORDER
This petition has been filed under Section 482 of Cr.P.C. to transfer the C.C.No.470/2018 (PCR No.43/2018) before the Civil Judge, J.M.F.C., Shahapur in Yadgiri District.
2. I have heard the learned counsel for the petitioner.
3. Though this case is listed for order, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.
4. Gist of the case is that the respondent - complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 before the Civil Judge and JMFC Court, Shahapur for dishonor of cheque for a sum of Rs.9,90,000/-. The -3- trial Court took cognizance and issued summons and the accused appeared before the Court.
5. It is the submission of the learned counsel for the petitioner that the petitioner is a permanent resident of Bengaluru city. Only with an intention to harass the petitioner/accused purposefully, the respondent has filed a case before the Yadgiri Court. It is his further submission that the petitioner/accused is a senior citizen and unable to travel from Bengaluru to Shahapur. It is his further submission that the affidavit and another case filed indicates that the petitioner and the accused are resident of Bengaluru and only with an intention to harass the petitioner/accused, the respondent-complainant has opened the account at Yadgiri and a complaint has been filed. On these grounds, he prayed to allow the petition. -4-
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the petitioner.
7. On what ground the power under Section 407 of Cr.P.C. has to be exercised. The decision of the Hon'ble Apex Court in the case of Amarinder Singh v. Parkash Singh Badal reported in (2009) 6 SCC 260 where under at paragraph Nos.18 and 51, it has been observed as under:
"18. 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 the apprehension alleged is reasonable or not. The apprehension must not only be entertained but must appear to the court to be a reasonable apprehension.-5-
51. We have already pointed out that a mere allegation that there is an apprehension that justice will not be done in a given case alone does not suffice. Considering the totality of all the circumstances, we are of the opinion that in a secular, democratic Government, governed by the rule of law, the State of Punjab is responsible for ensuring free, fair and impartial trial to the accused, notwithstanding the nature of the accusations made against them. In the case on hand, the apprehension entertained by the petitioners cannot be construed as reasonable one and the case cannot be transferred on a mere allegation that there is apprehension that justice will not be done."
8. Yet another decision in the case of Nahar Singh Yadav v. Union of India reported in (2011) 1 SCC 307 at paragraph No.29, it has been observed 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 sub-sections (2) and (3) of the said section and on an analysis of the decisions of this Court that an order of -6- 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;
(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;
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(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."
9. On going through the above said decisions, it has been observed that the order of transfer of trial is not passed as a matter of routine. Merely because interested party apprehends or wants to be tried before the Court as per his convenience and when cause of action arose and the jurisdictional Court has taken cognizance, then under such circumstance, I am of the considered opinion that the contention of the petitioner that only with an intention to harass, a false complaint -8- has been registered at Yadgiri Court and he is a senior citizen, it is very difficult for him to travel from Bengaluru to Shahapur, is not a good ground to transfer the petition. In that light, notice is also dispensed with to respondent.
Hence, petition being devoid of merits, is liable to be dismissed and accordingly, it is dismissed.
The trial Court is directed to expedite the trial within a period of six months from the date of receipt of copy of this order by taking the case on day to day basis.
Sd/-
JUDGE VBS