Sanjay Pandey vs State Of West Bengal & Anr

Subhasis Dasgupta, J

This is an application under Section 407 read with Section 482 of the Code of Criminal Procedure, praying for transfer of a complaint case No.570 of 2017 pending before the court of learned Additional Chief Judicial Magistrate at Kalyani to Additional Chief Judicial Magistrate, Asansol or to any other court of competent jurisdiction in the vicinity of Kolkata.

The case of the petitioner seeking transfer is that he is a business man of Dhanbad having a proprietorship firm. In view of business relationship between the parties, a cheque involving an amount of Rs.5,00,000/- was issued in favour of the opposite party No.2 and the same was dishonoured by the bank. The opposite party No.2 in due discharge of statutory formalities initiated a notice of demand, and since notice of demand turned to be futile exercise, an independent prosecution under Section 138 of Negotiable Instruments Act was instituted against the petitioner. It is the definite stand of the petitioner that the court, where the instant prosecution has been initiated is about 450 kilometre away from his residential house at Dhanbad, and it takes more than 10 hours journey to reach at Kalyani in the interest of putting up his best available defence. Petitioner wants to contest the case putting up his best available defence, and accordingly has sought for transfer of the present case now pending at Kalyani to the Court at Asansol, or to any other court of competent jurisdiction in the vicinity of Kolkata.

Learned advocate for the petitioner referring such facts submitted that the petitioner would be unnecessarily put to face much convenience to contest the case, undertaking a journey of more than 10 hours from his residence, and urged the court for transfer of the pending case to the proposed court, so that there could be comparatively lesser harassment to the petitioner.

Learned advocate for the opposite party controverting the submission raised by the petitioner submitted that in view of the special legislation engrafted in N.I. Act transfer was not permissible in such type of cases. Taking shelter to the Section 142 of the N.I. Act, learned advocate submitted with all emphasis that when there was special provision in the Act itself as to the court to enquire into a try the offence under Section 138 of N.I. Act, no other court would be permitted to enquire and try into the offence.

The only point to be addressed by this court is whether the proposed transfer is permissible or not in view of alleged personal inconvenience and harassment, as sought to be taken, in support of the prayer for transfer. Section 142 of the N.I. Act starts with a non obstante clause which may be found from Section 142 (1) of the N.I. Act and the relevant provision governing the field may be mentioned as hereinbelow:-

"142. Cognizance of offences.- [(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

(a).........

(b).........

(c).........

(2)The offence under section 138 shall be inquired into an tried only by a Court within whose local jurisdiction, -

(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

(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.

Explanation.- For the purposes of clause (a), where a cheque is delivered for collection at any breach 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."

Upon reading of the entire scheme of Section 142 of the N.I. Act, it appears that the 'Court' mentioned in 142(2) of the N.I. Act is the only authorised court having authority to enquire into and try the offence under Section 138 of N.I. Act for certain contingencies, shown in (a) and (b) of Sub-Section 2 of Section 142 of N.I. Act.Since the legislature used the word with a non obstante clause like "Notwithstanding anything contained in the Code of Criminal Procedure", the jurisdiction of any other court to try the offence has been completely taken away, and ousted thereby. Significantly learned court of A.C.J.M Kalyani in the given set of facts is the only court, which is specifically mentioned in 142(2) of the N.I. Act, to enquire into and try the offence, and no other courts, irrespective of the harassment, inconvenience if there be any caused to the petitioner/accused for participating in the instant prosecution, now pending at Kalyani Court.

The prayer for transfer is without any merits and accordingly refused. Learned court below is directed to go ahead with the case as expeditiously as possible, giving sufficient opportunity to either of this party to this case without granting unnecessary adjournment, unless it is unavoidable.

With this observation and direction, the revisional application C.R.R No. 323 of 2019 stands disposed of.

Urgent photostat certified copy of this, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with all necessary formalities.