MADHUKANT DAVE Vs. NAVNEET DHAGAT

JUDGEMENT

(1.) THIS order shall dispose of both the aforesaid petitions, moved under Section 407 of the Code of Criminal Procedure. Madhukant Dave, the applicant in M.Cr.C. No. 1033/2002, seeks the transfer of complaint case No. 33/2001, styled as Navneet Dhagat Vs. Madhukant Dave, pending in the Court of J.M.F.C. Sagar, to the Court of C.J.M. Gwalior, on the facts that non -applicant, the complainant of Complaint Case No. 33/2001, who is the younger brother of applicant's wife, visited the applicant at Gwalior on 29th October, 1996, and stayed with him till night of 1st of November, 1996. In the morning, on 1st November, 1996, the applicant drew four cheques out of which, one cheque bearing No. 144484, which he drew for monthly expense, was signed also by him but the spaces were left blank, as the applicant had to rush for his duties at 9 a.m. and his office is situated at a distance of 23 Kms. Leaving the non -applicant at his residence, the applicant left for his office, after keeping the cheque book in the drawer of his table. Inspite of repeated request of the applicant to stay further, the non -applicant left Gwalior to Sagar, the same night. In the next morning, when the applicant opened the drawer of the table, he found the cheques missing from the cheque book, which he drew the earlier day and hence not only he asked the Bank on 2.11.1996 to stop the payment of all these cheques, but lodged a report also about the theft of these cheques, at Police Station University Area, Gwalior. The copy of report lodged at P.S. University Area, Gwalior, is marked as Annexure A/1 and the application submitted to the Bank Manager is marked as Annexure A/2. Thereafter, On 10th May, 1997, the petitioner received this information from his Bank that cheque bearing No. 144484, which was reported by the applicant to have been stolen, is received in Bank for encashment of Rs. 5,70,000/ -. Again the applicant submitted an application to the Chief Manager of the Bank for taking appropriate action against the non -applicant for forging his cheque bearing No. 144484 and quickly lodged a report at Police Station University Area, Gwalior, giving the aforesaid intimation the same day. The photocopy of written advise, copy of cheque, copy of applicant's application to Chief Manager of the Bank and the report lodged at Police Station University, Gwalior, are marked as Annexure A/3 to A/6 respectively. The Police Station University; Area,; Gwalior, registered Crime No. 82/97, against the non -applicant after due investigation and filed a Police report in me Court of C.J.M. Gwalior, which is registered as Criminal Case No.2303/97. The charge for an Offence punishable U/s.380 of the I.P.C. is framed against non -applicant in aforesaid case. The copies of F.I.R. and charge sheet are marked as Annex. A/7 and A/8.

(2.) NON -applicant filed a criminal complaint against the applicant at Sagar for offences punishable U/s.138 of the Negotiable Instrument Act, 1881, and Section 420 of the I.P.C. in respect of aforesaid cheque bearing No. 144484, which stood registered as Complaint Case No.33/2001, and is pending in the Court of J.M.F.C Sagar. The applicant seeks transfer of this complaint case bearing No. 33/2001 to the Court of C.J.M. Gwalior, where Criminal Case No.2303/1997 is pending against non -applicant, in respect of same cheque No. 144484, for an offence punishable U/s.380 of the I.P.C. In M.Cr.C No.2005/2002, petitioner Dr. Navneet Dhagat, seeks transfer of Criminal Case No. 2303/97 (State Vs. Navneet Dhagat), pending against him in the Court of J.M.F.C. Gwalior, (as stated in petition), for an offence punishable U/s.380 of the I.P.C. to the Court of J.M.F.C. Sagar, on the facts that his only sister is married to non -applicant Madhukant Dave and the cases under Hindu Marriage Act, are pending between them at Sagar, In lieu of payment of loan, non -petitioner gave him the cheque dated 19.11.1996 for an amount of Rs. 5,70,000/ -, which on presentation to State Bank of India, Sagar, on 7th May, 1997, stood dishonoured by the Bank on 10.5.1997 and was returned to the petitioner on 16 -6 -1997. Since the non -petitioner did not pay the amount of dishonoured cheque, inspite of service of registered notice dated 23.6.1997, the petitioner filed, a criminal complaint against non -petitioner for offence punishable U/s. 138 of the Negotiable Instrument Act and Section 420 of the I.P.C. on 4th August, 1997, which is registered as Criminal Complaint No.33/ 2001. On the report lodged by Madhukant Dave; the non -petitioner at Police Station University Area, Gwalior, a Police report is filed against the petitioner for offence punishable U/s 380 of the I.P.C. in respect of aforesaid cheque dated 19.11.1996; which is drawn for an amount of Rs. 5,70,000/ -. This Police report is registered as Criminal Case No.2303/1997, and is pending in the Court of J.M.F.C. Gwalior.

(3.) THEREAFTER , the petitioner moved a petition U/s 482 of the Cr. P.C., registered as M.Cr.C No. 1280/99, seeking quashment of proceeding in Criminal Case No. 2303 -97, pending in the Court of J.M.F.C. Gwalior, which stood disposed of on 8th Feb. 2002, with this observation that the aforesaid Criminal Case No. 2303/97, should be tried with Complaint Case No.33/2001. On the observations made by this Court in M.Cr.C No. 1280/99, the petitioner now seeks transfer of Criminal Case No.2303/97, pending in the Court of J.M.F.C. Gwalior, to the Court of J.M.F.C. Sagar, for trial along with Criminal Complaint No.33/2001. As per certified copy of order dated 8th February, 2002, passed in M.Cr.C No. 1280/99, this Court observed as under : - I am of the opinion that where there is prima facie evidence, it is not desirable to enter into merits of the case by invoking powers under Section 482 of the Cr.P.C. However, where both the cases relate to the same subject i.e. the cheque in question, it is hoped that the trial may be conducted in one Court and both the cases are to be disposed of simultaneously. The petitioner if so desire, may move an application for transfer of either of the case so that both the cases may be tried by the same Court and disposed of on the same date. In Channu Vs. State of Punjab, reported in Vol., III (2001) CCR 21 (SC), their Lordships of the Supreme Court, were pleased to transfer the criminal case pending in the court of C.J.M. Bhatinda, for offences punishable U/S.379 and 411 of the I.P.C., to the court of Metropolitan Magistrate, Patiala House, New Delhi, where a criminal case was pending in respect of stolen vehicle with a view to avoid inconsistency in orders. It is settled position of law that in transfer of a case, the convenience and inconvenience of both the parties are to be weighed. Of course, it is not brought on record as to how many witnesses are to be examined in these cases, but normally the number of witnesses which are listed to be examined on behalf of complainant in a complaint case, is not more than half a dozen, whereas in cases registered on Police reports, the number is always above half a dozen and ordinarily about a dozen, therefore, on a consideration of this fact also that Madhukant Dave initiated the action about 9 months earlier, to the date of filing of criminal complaint by non -applicant Navneet Dhagat, it is found to be just and proper that Complaint Case No.33/2001, be transferred from the Court of J.M.F.C. Sagar, to the Court of C.J.M. Gwalior.