D J AJITHPRASAD Vs. D G NAGARAJU

JUDGEMENT

(1.) This petition under Section 407 Code of Criminal Procedure is filed seeking transfer of C.C. No. 436/2007 pending on the file of Addl. Civil Judge (Jr. Dn.) & JMFC, Turuvekere, to any other court within the session division of Tumkur District in the interest of justice.

(2.) From the order passed by the learned Sessions Judge and the other papers produced before this Court it is disclosed that the Respondent has filed a case against the Petitioner/accused under Section 138 of the N.I. Act for the recovery of cheque amount and the case is pending in C.C. 436/2007 art the fife of Addl. Civil Judge (Jr. Dn.) & JMFC., Turuvekere. In the said case before the trial Court complainant examined as FW.1 and Bank Managers have been expanded as FW.2 and FW.3 from the side of the complainant. It is alleged that the learned magistrate has not provided an opportunity to cross-examine PW.2 and 3 on the ground that accused counsel was not present on 28.05.2010 and 25.06.2010 and taken the cross-examination of PW.2 and 3 as and closed the side of complainant and posted the case to 13.06.2010 to record the statement of accused under Section 313 of Code of Criminal Procedure Due to Hi-health the Petitioner/accused counsel could not appear on 13.08.2010. Consequent the trial Court issued HBW against the Petitioner/accused and posted the case to 25.08.2010. The Petitioner/accused engaged new counsel on 25.08.2010 and said new counsel has filed his vakaiath and filed an application to recall N.B.W. The learned magistrate levied penalty of Rs. 2,500/- and recalled N.B.W. and posted case to 07.09.2010. That on 07.09.2010 the application filed by the Petitioner/accused under 311 of Code of Criminal Procedure is allowed on payment of cost of Rs. 500/- for the examination of FW.1 and on that day FW.1 was not present and case posted on 29.09.2010. The Petitioner's counsel could not appear before Court on 29.09.2010 and on that day his counsel filed application under Section 317 of Code of Criminal Procedure and also an application under Section 309 of Code of Criminal Procedure for grant of IS days time. As the counsel was already engaged Mandya, Mysore and Shree rangapatna etc. On 29.09.2010 the learned Magistrate rejected both the applications and noted the cross-examination of FW.1 as nil and is sued NBW to accused/Petitioner and posted the case to 12.10.2010 for recording 313 Code of Criminal Procedure statement of accused.

(3.) The Petitioner therefore has Sled a petition under Section 408 Code of Criminal Procedure before the Sessions Judge, Tumkur to transfer the case to any other Court apprehending that the Magistrate has pre-detertriined the case and that no justice would be done to him.