MD Fayzal Hoque Vs Abdul Gofur Mondal

The petitioner has filed the instant transfer petition under Section 447, Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 seeking transfer of the proceedings of a complaint case, C.R.[N.I.] Case no. 5316^C /2022 from the Court of learned Judicial Magistrate, First Class, Kamrup [M] at Guwahati to the Court of learned Chief Judicial Magistrate, Barpeta at Barpeta.

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The complaint case, C.R.[N.I.] Case no. 5316^C /2022 has been instituted by the respondent herein as the complainant under Section 138 read with Section 142 of the Negotiable Instrument Act, 1881, as amended, [‘the N.I. Act’, for short] stating inter alia that a cheque bearing no. 000036 dated 10.04.2022 drawn for an amount of Rs. 2,00,000/- by the petitioner from a bank account maintained by him at Ganeshguri Branch of HDFC Bank stood dishonoured on its presentation for collection by the respondent-complainant at his Bank, AXIS Bank Ltd., Bharalumukh Branch on the ground of insufficiency of fund in the account maintained by the petitioner at HDFC Bank, Ganeshguri Branch. Upon dishonour of the cheque, a legal notice was sent by the respondent-complainant to the petitioner, on 11.07.2022. It has been averred in the complaint that the legal notice sent by registered post on 11.07.2022 was duly delivered to the noticee, that is, the accused-petitioner at his address at Madhurjya Enclave, House no. 85, near Hatigaon Police Station, P.O. Hatigaon, District – Kamrup [M], Assam on 15.07.2022. After elapse of the statutory period, the complaint was filed by the respondent-complainant before the Court of learned Chief Judicial Magistrate, Kamrup [M] at Guwahati on 26.08.2022. Thereafter, the complaint case, registered and numbered as C.R.[N.I.] Case no. 5316^C /2022, was transferred to the Court of the learned Judicial Magistrate First Class, Kamrup [M] at Guwahati for disposal. In C.R.[N.I.] Case no.

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5316^C /2022, the petitioner is the sole accused.

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The main ground on which the instant transfer petition has been preferred by the accused-petitioner is that the petitioner is a Government registered contractor and is a permanent resident of Barpeta district. The petitioner is involved in various construction works in Barpeta as well as in the other neighbouring districts of Barpeta. The petitioner has further averred that the respondent-complainant is also a resident of Barpeta and it is reflected in the complaint itself that the respondent is a resident of Baghmara Char, P.O. – Baghmara, District - Barpeta.

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Sub-section [2] of Section 142 of the N.I. Act, 1881, as amended, reads as under :-

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[2] The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—

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[a] if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

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[b] if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

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Explanation.— For the purposes of clause [a], where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.

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On a combined reading of the provisions contained in Section 142[2] and

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Explanation therein, it is clear that with reference to an offence under Section 138 of the N.I. Act, the place where a cheque is delivered for collection, that is, the branch of the bank of the payee or holder in due course, where the drawee maintains an account, is determinative of the place of territorial jurisdiction.

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The afore-stated position has also been explained in Bridgestone India Private Limited. Vs. Inderpal Singh, reported in [2016] 2 SCC 75.

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Section 447 of the BNSS has provided the High Court the power to transfer cases and appeals. For ready reference, sub-section [1] of Section 447 is quoted hereunder :-

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Power of High Court to transfer cases and appeals :-

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[1] Whenever it is made to appear to the High Court-

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[a] that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto; or

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[b] that some question of law of unusual difficulty is likely to arise; or

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[c] that an order under this section is required by any provision of this Sanhita, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order-

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[i] that any offence be inquired into or tried by any Court not qualified under sections 197 to 205 [both inclusive], but in other respects competent to inquire into or try such offence;

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[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;

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[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.

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On a reading of the provisions contained in sub-section [1] of Section 447 of the BNSS, it is evident that the power to transfer cases is exercisable in three situations :- [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 Sanhita, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order-

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In the case in hand, the petitioner who has been arraigned as accused in the complaint case, C.R.[N.I.] Case no. 5316^C /2022, had issued the cheque under reference from an account maintained by him at Ganeshguri Branch of HDFC Bank. The bank where the cheque was presented by the respondentcomplainant for collection of the cheque amount of Rs. 2,00,000/- was Bharalumukh Branch, Guwahati of AXIS Bank Ltd. The legal notice issued after dishonour of the cheque due to insufficiency of fund in the account maintained by the accused-petitioner was served upon the petitioner’s address at Guwahati. In the complaint, the respondent-complainant has named the witnesses whom the respondent-complainant would want to bring to adduce

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evidence on his behalf in the proceeding of C.R.[N.I.] Case no. 5316^C /2022. Among the listed witnesses, the respondent-complainant has named himself as one of the witnesses. Three of the witnesses are officials from HDFC Bank, Ganeshguri Branch; AXIS Bank Ltd., Bharalumukh Branch; and the Post-Office, Meghdoot Bhawan, and all these witnesses are from Guwahati, District – Kamrup [M].

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Having examined the fact situation obtaining in the case in hand vis-à-vis the provisions contained in Section 142[2], N.I. Act and Section 447, BNSS, this

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Court does not find any merit in the contentions advanced by the accusedpetitioner. The conditions contained in Clause [c] of sub-section [1] of Section 447 of the BNSS are not found to be applicable as most of the witnesses who are likely to tender evidence in the proceedings of C.R.[N.I.] Case no. 5316^C /2022, are from Guwahati, District – Kamrup [M]. As the legal notice dated 11.07.2022 was served upon the accused-petitioner at his Guwahati address, it is not open for the complainant to allege that there would be inconvenience for him to stand in the trial of complaint case, C.R.[N.I.] Case no. 5316^C /2022. The petitioner cannot urge on behalf of the respondentcomplainant that as the respondent-complainant hails from Barpeta, he would face inconvenience to attend the proceedings of C.R.[N.I.] Case no. 5316^C /2022 at Guwahati because it is the respondent-complainant who has instituted the proceedings at Guwahati.

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In the light of the discussion made above and for the reasons assigned therein, this criminal petition is found to be bereft of any merit and is liable to be dismissed.

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Consequently, the instant criminal petition is dismissed.

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JUDGE

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MD Fayzal Hoque v. Abdul Gofur Mondal

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MD Fayzal Hoque v. Abdul Gofur Mondal

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