Indian Kanoon - Search engine for Indian Law

These Criminal Original Petitions have been filed seeking to order withdrawal and transfer of C.C. Nos.867 of 2012, 869 of 2012, 97 of 2012 and 868 of 2012 from the Court of Judicial Magistrate at Alandur, to any other Criminal Court of equal jurisdiction.

2 Heard the learned counsel appearing for the petitioner and the learned counsel for the respondent.

3 For the sake of convenience, the parties will be referred to by their names.

4.1 Inderchand Nahar filed three complaints, viz., C.C. Nos.5290 to 5292 of 2010 before the XVII Metropolitan Magistrate, Saidapet against B.Thamburaj under Section 138 of the Negotiable Instruments Act, 1881 (for brevity the NI Act). After receipt of summons in the said three cases, Thamburaj filed a private complaint in C.C. No.97 of 2010 before the Judicial Magistrate, Alandur against Inderchand Nahar, alleging that the latter had committed an offence under Section 420, IPC. Thereafter, Thamburaj filed Criminal O.P. Nos.13666 to 13668 of 2012 before this Court seeking transfer of C.C. Nos.5290 to 5292 of 2010 from the file of the XVII Metropolitan Magistrate Court, Saidapet, to the file of the Judicial Magistrate Court, Alandur, to be tried along with C.C. No.97 of 2010. This Court allowed Criminal O.P. Nos.13666 to 13668 of 2012 by order dated 28.06.2012, pursuant to which C.C. Nos.5290 to 5292 of 2010 were transferred from the file of the XVII Metropolitan Magistrate Court, Saidapet to the file of the Judicial Magistrate Court, Alandur and were re-numbered as C.C. Nos.867 to 869 of 2012, to be tried along with C.C. No.97 of 2010.

4.2 Taking advantage of the transfer, Thamburaj wantonly slow pedalled the trial in C.C. No.97 of 2010 by deliberately adopting dilatory tactics. During the trial, Thamburaj picked up quarrel with the learned Judicial Magistrate, Alandur and filed an application on 12.01.2016 before the said judicial officer contending that he has no confidence in the Court and sought adjournments on that score. The learned Judicial Magistrate, Alandur, adjourned the cases from time to time, in order to enable Thamburaj to approach the higher forum for transfer of the cases. Under such circumstances, Thamburaj has approached this Court by filing the present Criminal Original Petitions for transferring the three prosecutions under Section 138 of the NI Act, which have been initiated against him by Inderchand Nahar and also to transfer his private complaint in C.C. No.97 of 2010 to any other Court, making certain allegations against the Presiding Officer.

5 This Court called for remarks from the Judicial Magistrate, Alandur and the report dated 02.04.2016 sent by the Judicial Magistrate, Alandur, is indeed heartrending. It may be apposite to extract a paragraph from his report, which, by itself, will show the cantankerous attitude of Thamburaj.

With regard to the allegations in Para V (ii)  I humbly submit that as pointed in the above I respectfully submit that after closing defence side witnesses on 08.09.2015 and posted for arguments to 16.09.2015. He had filed another petition on 16.09.2015 under section 311 Cr.P.C to examine bank witness, even though this court could not able to complete the trial within the stipulated time as directed by Hon'ble High Court in Crl.O.P.13666 to 13668 of 2012 dated 28.06.2012, this court have allowed the petition on 16.10.2015 for giving fair opportunity to the accused. Further I respectfully submit that I have assumed charge only on 18.09.2015 for Judicial Magistrate, Alandur. Thereafter on 05.11.2015, Bank witness was partly examined as DW4 and at the request the case was adjourned to 26.11.2015, 08.12.2015 periodically, but the DW4 bank witness had not turned to adduce evidence further, on 08.12.2015 this court directed the accused counsel to take effective steps to produce the witness on 17.12.2015, but on 17.12.2015 accused had not taken any steps to produce the witness DW4, hence this court considering the above all facts coupled with the fact that the Hon'ble High Court ordered this court to dispose the case within 3 months, but had not able to dispose the case even after lapse of three years, this court closed the DW4's evidence. The said order passed by me was neither challenged by the accused before any appellate court nor chosen to file fresh 311 petition before this court to recall DW4. But the learned counsel for accused had requested long date for arguments, hence at the request of the Mr.Thamburaj's Counsel, the case was adjourned to 07.01.2016 for arguments. I respectfully submit that, I have given sufficient opportunities to the accused to put forth his defence, and it is totally false that, I have not given fair opportunity to the accused.

I respectfully submit that with regard to the allegations in para V (iv)  I denied the entire allegations and it is totally false and submitted that even though this Court could not able to complete the trial within the stipulated time fixed by the Hon'ble Court, this Court have given ample and sufficient opportunities to the accused side to put forth his defence. Hence, I respectfully submit that, it is totally false that this Court have not given fair opportunity to the accused.

I respectfully submit that with regard to the allegations in para V(v)  I humbly submit that, on 12.01.2016, the case was posted for defence side arguments, but, on 12.01.2016, the counsel for the accused submitted that We have no confidence over this Court and had also filed a memo with false allegations against me and requested time for filing transfer application. Immediately I have adjourned the case on 04.02.2016 for obtaining transfer order. Subsequently the case was adjourned from 04.02.2016 to 25.02.2016 and 24.03.2016 periodically and now, the case was adjourned to 28.04.2016. 6 From the report of the Judicial Magistrate, Alandur, it is obvious to to this Court that Thamburaj has been deliberately delaying the conduct of the cases, despite several judicial directions issued by this Court. The allegations made against the Judicial Magistrate, Alandur, are indeed uncharitable and this Court cannot countenance the attitude of Thamburaj.