Andhra Pradesh High Court - Amravati
This Transfer Criminal Petition Is ... vs Union Of on 11 July, 2023
THE HON'BLE SRI JUSTICE B SYAMSUNDER
TRANSFER CRIMINAL PETITION No.33 of 2023
ORDER:
This Transfer Criminal Petition is filed by the petitioners/ accused under Section 407 of the Criminal Procedure Code (in short, Cr.P.C), seeking transfer of CC.No.288 of 2020 on the file of Judicial First Class Magistrate, at Pulivendla to I Additional Judicial First Class Magistrate, Nellore.
2. The case of the petitioner in brief, is that the he is the Director of the 1st petitioner Company, doing business of supplying cements and building materials to various customers, and undertakes civil contract works. The petitioner submits that the 1st respondent approached them for supply of Vizag steel and JSW cement, and issued quotation on 04.02.2019, and then the 1st respondent agreed the quotation for a sum of Rs.1,03,76,000/- towards supply of Vizag steel and JSW cement, and instructed to start deliveries of material from 02.03.2019. After that, the petitioner said to have been supplied the material to the 1st respondent. At the time of finalizing the deal as per quotation, dated 04.02.2019 one Mr.Babu obtained five empty 2 cheques, drawn on ICICI Bank Limited, Nellore towards security on condition that they would be returned after completion of said transaction of supply of materials as agreed upon. The petitioner alleged that after completion of delivery of material, he requested the 1st respondent to deposit the outstanding amount of Rs.78,998.24 p.s, but the 1st respondent neither paid the outstanding amount nor returned the cheques obtained from him towards security, and thereafter the Director of the 1st respondent Mr.Narreddy Siva Prakash Reddy along with two of his Executives started giving life threats to him for repayment of Rs.1,03,76,000/- by accusing him for not supplying the required material as per the deal, dated 04.02.2019. The main contention of the petitioner is that said Mr.Narreddy Siva Prakash Reddy along with two other Executives in collusion and coercion with Circle Inspector and Sub-Inspector of Police of IV Town Police Station, Dargamitta, Nellore used to call him to the Police Station under the guise of settlement and demanded huge amounts, and thereafter he filed Writ Petition No.1123 of 2020 before this Court, wherein the Court directed the Police not to interfere in civil disputes, but in spite of it he said to have been getting 3 threats for repayment of various amounts, and he gave report to various authorities, including the Hon'ble Chief Minister of Andhra Pradesh on 17.02.2020, seeking for police protection. It is also the contention of the petitioner that a false report of cheating lodged against him at Vedayapalem Police Station, Nellore District for the offences punishable under Sections 420 and 409 of the IPC on 27.09.2021 by one Mr.Boddu Prem Kumar, who claims to be the Manager of the 1st respondent Company, stating that though they have transferred Rs.67,50,000/- to the 1st petitioner for supply of materials as per the deal, he has been cheated and caused wrongful loss to the 1st respondent for not supplying the agreed material. Basing on the said complaint, the Circle Inspector and Sub-Inspector of Vedayapalem Police Station along with their subordinates, and two men of the 1st respondent Company on 03.10.2021 came to Vijayawada when the 2nd petitioner was at his in-laws' place to visit his pregnant wife, and taken him with them, kept him in a private apartment all the night. Later, said acts grabbed the attention of the media, and then he was remanded, and thereafter he filed Criminal Petition No.6723 of 2021 before this Court to quash FIR, and then the 4 Investigating Officer filed Final Report, dated 17.08.2022 stating that no case of cheating was made-out against him and referred the case as mistake of law, and thereafter he withdrew the Criminal Petition No.6723 of 2021 on 09.09.2022. The petitioner submits that due to threats, he filed private complaint in CC No.1505 of 2022 on the file of V Additional Judicial Magistrate of First Class under Section 190 of the Cr.P.C against Mr.Narreddy Siva Prakash Reddy, his son, his men and Sub-Inspector of Police, Circle Inspector of Vedayapalem Police Station for the offences punishable under Sections 363, 364, 419, 420, 324, 447, 506 and 511 read with 34 of the IPC on 27.10.2021, which was taken on file against the Police Officers for the offences punishable under Sections 363 and 447 read with 34 of the IPC. The petitioner said to be made representation to the B.C. Commission and the Director General of Police, and in the meanwhile he said to be received summons in CC No.288 of 2020 on the file of Judicial First Class Magistrate, Pulivendla on a complaint filed by Mr.Narreddy Siva Prakash Reddy for the offence punishable under Section 138 of the N.I.Act. The petitioner alleged that the 1st respondent utilized blank cheques 5 issued by him as security for supply of goods, and created false complaint forced him to attend the Court at Pulivendla, where he is having threats to his life. He prays to transfer CC No.288 of 2020 from Judicial First Class Magistrate, Pulivendla to I Additional Judicial First Class Magistrate, Nellore.
3. I have heard learned Senior counsel Smt M.Bhaskara Lakshmi, representing on behalf of Smt Swati Guda, learned counsel for the petitioners as well as Mr.K.Srinivas, learned counsel for the 1st respondent.
4. The learned Senior counsel, representing the petitioners would submit that the 2nd petitioner is having threat to his life, if he attends the Court at Pulivendla, as the 1st respondent intentionally filed complaint before Judicial First Class Magistrate, Pulivendla to force the 2nd petitioner to attend the Court. She would further submit that previously the 1st respondent with the help of Vedayapalem Police Officers created a false case against the 2nd petitioner, and taken the 2nd petitioner kept him in a private apartment, which was noticed by the media, and thereafter he was sent to judicial remand, and then after due investigation the Investigating Officer filed Final Report by 6 stating that no offence of cheating is made out, it is only mistake of law. It is also the contention of the learned Senior counsel for the petitioners that no part of cause of action arose within the jurisdiction of Judicial First Class Magistrate, Pulivendla, but the 1st respondent intentionally filed complaint, where the 2nd petitioner is having threat to his life. She prays to allow the petition.
5. The learned counsel for the 2nd respondent would submit that it is no where stated in the affidavit of the 2nd petitioner where and when he attended the Court at Pulivendla, and why he failed to lodge any report before the Station House Officer, Pulivendla Police Station, if the 2nd petitioner is having really threat to his life. He would further submit that as the 1 st respondent presented the cheque in his Bank account at Pulivendla, which Court has got territorial jurisdiction to try the case, but the petitioners intentionally filed petition only to drag on the matter. He prays to dismiss the petition.
6. Now the point that emerges for consideration of this Court is:
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"Whether there are any grounds to transfer CC No.288 of 2020 on the file of Judicial First Class Magistrate, at Pulivendla to I Additional Judicial First Class Magistrate, Nellore?"
7. POINT: Before going to the merits of the case, it would be beneficial to quote Section 407 of the Criminal Procedure Code, 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) that 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.
(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 8 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 copy of the grounds on which it is made; and no order shall be made on of 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 or 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.
(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
(9) Nothing in this section shall be deemed to affect any order of Government under section 197."
8. 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;
(ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;1
(2011) 1 SCC 307 10
(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."
9. In the present case, a perusal of copy of complaint filed by the 1st respondent against the petitioners prima-facie shows that the petitioners said to be agreed to supply the material for construction work to the 1st respondent, which work spot is said to be between Penchalakona and Cnunenuru. Admittedly, the business place of the petitioners is at Nellore town, and the alleged cheques said to have been issued at Nellore town. The petitioner has also taken steps by filing Writ Petition No.1123 of 2020, on the ground that Vedayapalem Police Officers are 11 frequently calling him to the Police Station at the instigation of the 1st respondent herein, wherein this Court passed Orders with a direction to the Police Officers not to interfere with civil disputes between the petitioners and the 1 st respondent. The petitioners also filed copy of FIR in Crime No.310 of 2021, dated 27.09.2021 lodged by one Boddu Prem Kumar said to be the Manager of the 1st respondent Construction Company, wherein the alleged cheating said to have been taken place prior to 27.09.2021 at MVK Steels & Cement, B.V.Nagar, Nellore. The 2nd petitioner also filed private complaint in CC No.1505 of 2022, wherein the learned V Additional Judicial Magistrate of First Class, Nellore passed Docket Order, dated 11.07.2022 by observing that there are sufficient grounds to say that the Police Officers committed the offence punishable under Sections 363 and 447 read with 34 of the IPC, and ordered to issue summons to the Police Officers on a private complaint lodged by the 2 nd petitioner herein for alleged threats committed by the Police Officers against the 2nd petitioner.
10. All these factors, prima-facie shows that there is a reasonable apprehension in the mind of the 2nd petitioner when 12 the trial in CC No.288 of 2020 on the file of Judicial First Class Magistrate, Pulivendla is proceeded. When there is a material that the accused may influence the witnesses or cause physical harm to the complainant, which the 2nd petitioner is apprehending in the present case, as per the ratio laid by the Hon'ble Apex Court in Nahar Singh Yadav case referred supra is a ground for considering the request of the petitioners to transfer the case. It is no doubt true that the 2 nd petitioner has not lodged any report before the Station House Officer, Pulivendla Police Station, which cannot be expected when he is apprehending danger to his life when he attends the Court at Pulivendla, as it appears that he has not yet appeared before the Court at Pulivendla. Therefore, this Court is of an opinion that there are grounds to transfer CC No.288 of 2020 on the file of Judicial First Class Magistrate, Pulivendla to I Additional Judicial First Class Magistrate, Nellore.
11. In the result, this Transfer Criminal Petition is allowed. CC No.288 of 2020 on the file of Judicial First Class Magistrate, Pulivendla is hereby withdrawn and transferred to I Additional Judicial First Class Magistrate, Nellore. The learned Judicial First 13 Class Magistrate, Pulivendla shall transmit the case records in CC No.288 of 2020 after duly indexed as expeditiously as possible within a period of Two (02) weeks from the date of receipt of Orders of this Court to I Additional Judicial First Class Magistrate, Nellore. Both parties shall appear before I Additional Judicial First Class Magistrate, Nellore on 11.08.2023 at 10.30 a.m. After re- registering the case, the learned I Additional Judicial First Class Magistrate, Nellore shall dispose of the cheque bounce case filed by R1 against the petitioners as expeditiously as possible within a period of Six (06) months from the date of receipt of Orders of this Court in the present petition. No order as to costs. Consequently, miscellaneous petitions if any, shall stand closed. Interim Stay if any, granted shall stand vacated.
___________________________ JUSTICE BANDARU SYAMSUNDER Date: 11.07.203 Bsv 14 THE HON'LE SRI JUSTICE BANDARU SYAMSUNDER Tr.Crl.P.No.33 of 2023 Date : 11.07.2023 Bsv