An application was filed to transfer a Section 138 NI Act case and stay proceedings due to alleged threats and the applicant's medical condition. The High Court found the apprehension unreasonable and dismissed the transfer application as lacking merit.
Transfer application dismissed; no transfer ordered.
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Court No. - 92 Case :- TRANSFER APPLICATION (CRIMINAL) No. - 373 of 2022
Applicant :- Vinod Kumar Agrawal And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rakesh Kumar Soni Counsel for Opposite Party :- G.A.,Krishna Dutt Tiwari
Hon'ble Mohd. Azhar Husain Idrisi,J.
Case called out. Learned counsel for the applicants and the learned A.G.A. for the State are present, however, learned counsel for opposite party no. 2 is not present.
Heard Mr. Rakesh Kumar Soni, learned counsel for the applicants and the learned A.G.A. for the State. Perused the record.
The instant transfer application has been moved with a prayer to transfer the Complaint Case No. 3740 of 2015 (Akash Gupta Vs. Vinod Kumar Agrawal), under Section 138 of Negotiable Instruments Act, Police Station Galshaheed, District Moradabad to the competent court of jurisdiction to other district and to stay the aforesaid proceeding.
It is submitted by the learned counsel for the applicants that applicant no. 1 is a heart patient and his bypass surgery has been done and treatment is going. Copy of the same has been annexed as Annexure-1A to the affidavit filed in support of the transfer application. It is further submitted that opposite party no. 2 filed a Complaint Case No. 3740 of 2015, under Section 138 of Negotiable Instruments Act, Police Station Galshaheed, District Moradabad in the court of Additional Chief Judicial Magistrate, Court No. 3, Moradabad against the applicants on 16.10.2010 stating therein that applicants had taken money from him and for the said purpose applicant no. 1 issued a cheque No. 775349 dated 15.4.2010 of Rs. 80,500/- in favour of opposite party no. 2. The applicant no. 2 also issued a cheque no. 795466 of Rs. 123857/- to opposite party no.2 on 15.4.2010, but the aforesaid cheques issued by the applicants have been returned by the ICICI, Moradabad with the remark of stop payment. It is further submitted that the aforesaid case is still pending before the court concerned. Therefore, the aforesaid case may be transferred from the district Moradabad to any other district.
It is further submitted that applicant no. 1 had also lodged an FIR on 25.9.2022 in respect of an incident which is alleged to
have occurred on 16.4.2022 against the opposite party no.2 and his associates alleging that they had demanded illegal money and threatened for life. It is next submitted that opposite party no. 2 and his associates, who are criminal nature and their terror is spread in the society, are regularly threatening to the applicant no. 1 that if in future he will come to the court, they will commit murder. In this regard the applicant sent application dated 20.7.2022 through registered post to the District Judge, Moradabad, Additional Court of 138 N.I. Act, Moradabad and Senior Superintendent of Police, Moradabad.
Learned A.G.A. has contended that the grounds on which, the present transfer application has been moved are not sustainable under the facts of the case. The transfer application has been moved by the applicants for ulterior motive on flimsy grounds, therefore same is liable to be dismissed.
Here it is apposite to mention that in view of sub-section (1) of Section 407 Cr.P.C. a case can be transferred, whenever it is made to appear to 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 the code of criminal procedure,or will tend to the general convenience of the parties or witness,or is expedient for the ends of justice.
Considering the facts and circumstances of the case and submissions of learned counsel for the parties in the light of aforesaid principle, I find apprehension expressed by the applicant is not reasonable. Illegitimate apprehension can not constitute a legitimate ground to transfer a case from one court to another court. The grounds set out by the applicants do not justify the transfer of case as prayed by the applicants. I do not find any good ground to interfere in the matter.
Transfer application being sans merit stands dismissed.
Office is directed to communicate this order to the concerned court for necessary information and compliance.
Order Date :- 22.3.2023/M. Tarik
Digitally signed by :- MOHD TARIK High Court of Judicature at Allahabad
1 issue framed by the court
Whether an illegitimate apprehension of threat justifies transfer of a case under Section 407 Cr.P.C.
1 provisions across 1 enactments
Vinod Kumar Agrawal
State of U.P.
Mohd. Azhar Husain Idrisi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
