Gauhati High Court
Krishna Kamal Borgohain vs Hdfc Bank Ltd on 15 December, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/5
GAHC010198662021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Tr.P.(Crl.)/21/2021
KRISHNA KAMAL BORGOHAIN
S/O LATE ABANI KUMAR
R/O DANGAL PARA
P.O. DANGPARA CHARIALI (BORBAM)
P.S. TINKHONG
DIST. DIBRUGARH, ASSAM,
PIN-786611
VERSUS
HDFC BANK LTD
A COPANY INCORPORATED AND REGISTERED UNDER THE COPANIES
ACT, 1956 HAVING ITS REGISTERED OFFICE AT HDFC BANK HOUSE,
SENAPATI, BAPAT MARG, LOWER PAREL (W),
MUMBAI-400013 AND HAVING ITS BRANCH OFFICE AT HDFC BANK LTD.
R.K.B. PATH, THANA CHARIALI, P.O., P.S. AND DIST. DIBRUGARH, ASSAM,
PIN-786001
Advocate for the Petitioner : MR N N UPADHYAYA
Advocate for the Respondent : MR. M SHARMA
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 15-12-2021 Heard Mr. R. Dhar, learned counsel for the petitioner and Mr. M. Sharma, learned counsel for the respondent.
Page No. 2/52. This petition has been preferred under Section 407 of the Code of Criminal Procedure, 1973 ['the CrPC' and/or 'the Code', for short] seeking transfer of the criminal proceedings of a complaint case, C.R. [N.I.] Case no. 462/2019 from the Court of learned Chief Judicial Magistrate, Jorhat where it is presently pending, to the Court of learned Chief Judicial Magistrate, Dibrugarh at Dibrugarh.
3. The complaint petition pertaining to the complaint case, C.R. [N.I.] Case no. 462/2019 is annexed to this petition as Annexure-3. From the said complaint, it is seen that the respondent HDFC Bank as the complainant had instituted the said complaint under Section 142 of the Negotiable Instruments Act, 1881, as amended [the Negotiable Instruments Act] against the petitioner as the accused for commission of an offence under Section 138 of the Negotiable Instruments Act. As per the complaint, the petitioner-accused had availed KGC loan facility from the respondent-complainant bank by entering into a loan agreement with Loan Account no. 50200020561057 and Loan Agreement no. 82074285 respectively. In the complaint, the respondent-complaint had averred that though the petitioner-accused was supposed to repay the loan amount in equated monthly installments regularly but he failed to pay the same as per the schedule. At one point of time, the petitioner-accused had issued a cheque bearing no. 000003 dated 11.07.2019 drawn on HDFC Bank Limited, Kartikpara, Dibrugarh for an amount of Rs. 7,00,000/- only towards discharge of his liability in respect of the said loan. The respondent-complainant deposited the said cheque in its bank account for encasement on 11.07.2019 but the said cheque was returned unpaid vide a return memo dated 20.07.2019 citing the ground "account dormant". A demand notice was sent on 14.08.2019 by the respondent-complainant bank to the petitioner-accused demanding the cheque amount within a period of 15 [fifteen] days. It has been averred that the said demand notice was sent to the proper address of the petitioner by registered post with acknowledge due on 17.08.2019. By drawing presumption under Section 27 of the General Clauses Act to the effect that the notice was deemed to have been received by the petitioner on 15.09.2019. Since A/D did not return after service, the respondent-complainant bank had averred that the cause of action for the offence arose on 30.09.2019. The complaint was filed on 24.10.2019.
4. Upon filing of the complaint, the leaned Chief Judicial Magistrate, Jorhat taking Page No. 3/5 cognizance of the offence under Section 138 of the Negotiable Instruments Act, issued process against the petitioner for his appearance to stand the trial.
5. Mr. Dhar, learned counsel for the petitioner has submitted that the petitioner had applied for an agricultural loan for an amount of Rs. 8,00,000/- from the respondent- complainant bank but he received an amount of Rs. 4,00,000/- only from the respondent- complainant bank. He has submitted that he had paid the entire amount in the year 2017 by issuing a cheque which the respondent-complainant bank had received with the assurance the amount would be adjusted to the loan account and a clearance certificate would be issued to him. But despite several approaches, the bank did not act in the manner it was assured to him. Mr. Dhar has further submitted that the respondent-complainant bank took a blank cheque bearing no. 000003 from him as the measure of security which they had presented for encasement without the knowledge of the petitioner and after dishonour of the cheque on the ground 'dormant account', the complaint case has been instituted. He has further submitted that the respondent-complainant bank had also resorted to arbitration proceeding by appointing a sole arbitrator for realization of an amount of Rs. 7,98,610.75 along post and pendente lite interest and it resulted into an award/decree dated 15.09.2018. After the said award, the respondent-complainant bank had instituted an execution proceeding vide Money Execution [Arbitration] Case no. 11/2021 before the Court of learned District Judge, Dibrugarh. Contending that the arbitration proceeding is pending before the learned District Judge, Dibrugarh, it is his contention that the criminal proceeding pertaining to complaint case, C.R. [N.I.] Case no. 462/2019 shall also be transferred to the Court of learned Chief Judicial Magistrate, Dibrugarh at Dibrugarh.
5.1. As regards the ground for transfer of the criminal proceeding from Jorhat to Dibrugarh, Mr. Dhar has submitted that the petitioner is a resident of Dangalpara Gaon under Police Station-Tingkhong, District-Dibrugarh and it is a remote place. The distance from the village, where the petitioner resides, to Jorhat is approx. 160 KMs. As such, it would be inconvenient for the petitioner-accused to travel from his village to Jorhat and besides that, it would entail a heavy expenditure.
Page No. 4/56. In response, Mr. Sharma has submitted that the concerned cheque was presented in the bank at Jorhat. As such, the Court of learned Chief Judicial Magistrate, Jorhat at Jorhat has the territorial jurisdiction to try the complaint.
7. The provision of Section 407 of the Code has provided power to the High Court to transfer cases and appeals. It is laid down therein that 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 the 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, then the Court may inter alia order that any particular case be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction.
8. In the case in hand, the petitioner has not raised any apprehension regarding any unfair and partial trial nor regarding any question of law of unusual difficulty which is likely to arise in the complaint under Section 138 r/w 142 of the Negotiable Instruments Act. The only ground that the petitioner has raised is with regard to the inconvenience he likely to face in attending the trial at Jorhat by travelling from his village of residence at Tingkhong, which is situated at a distance of approx. 160 KMs to Jorhat.
9. The question of convenience or inconvenience in attending a trial of either the complainant or the accused of at a particular place and transfer of a criminal case from one place to another on that ground was considered by the Hon'ble Supreme Court of India in paragraph 46 in the case of Rajesh Talwar vs. Central Bureau of Investigation and others, reported in [2012] 4 SCC 217 and it has been held as under :-
"46. Jurisdiction of a court to conduct criminal prosecution is based on the provisions of Code of Criminal Procedure. Often either the complainant or the accused had 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 Page No. 5/5 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 a 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."
10. In the case in hand, the petitioner has not pleaded any physical disability to travel the distance of approx. 160 KMs from his place of residence to Jorhat i.e. the place of trial. The petitioner has claimed himself to be as an agriculturist. The petitioner has declared his age as 38 years. The learned counsel for the parties at the Bar has submitted that the transportation facility from Dibrugarh to Jorhat is good. An able bodied person can complete to and fro journey from Dibrugarh to Jorhat and vice versa within the day. There are different modes of public transport like bus, rail, light motor vehicles, etc. are available at small intervals. On a query, Mr. Dhar has mentioned that the distance from the place of residence of the petitioner to Dibrugarh would be approx. 25 KMs.
11. In view of the above fact situation obtaining in the case, the ground of inconvenience that has been urged on behalf of the petitioner does not deserve acceptance. Consequently, this petition seeking transfer of the criminal proceeding of C.R. [NI] Case no. 11/2021 from the Court of learned Chief Judicial Magistrate, Jorhat to the Court of learned Chief Judicial Magistrate, Dibrugarh is found devoid of any merit and consequently, the same is dismissed. There shall, however, no order as to cost.
JUDGE Comparing Assistant