Query regarding latest amendment U/s 138 of Ni Act,1881 and transfer of case

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    • #3280

      Respected Sir/s,

      My family member has filed 3 cases against accused person U/s 138 of Ni Act (through POA) as per local jurisdiction, the accused has appeared before concerned court,he has been released on bail and he has also recorder his plea AND Evidence has already been filed WHEREAS even i have filed 3 cases u/S 138 of Ni Act as per local jurisdiction , the accused has appeared before concerned court,he has been released on bail & he has also recorded his plea.
      Now it so happens that the accused has filed transfer application before Ld.CMM Court U/s 410 CrPc and has got order whereby the 3 cases filed by my family member to the court in which i have filed 3 cases for trying together/common trial.
      Is the order of Ld.CMM sustainable as he has taken away jurisdiction from one court and has given it to another court.

      Kindly clarify.
      Thanxxx.

    • #3281

      Section 142 of the Negotiable Instruments Act lays down that the trial for an offence under Section 138 of the said Act is to be conducted by the court within whose jurisdiction the branch of the bank is situated in which the account of the payee is maintained in which the cheque is deposited.

      Section 410 of the Criminal Procedure Code gives power to the Chief Judicial Magistrate to transfer a case from one Magistrate to another within his jurisdiction. This power is similar to the power of transfer of the Supreme Court under Section 406 and that of the High Court under Section 407 of the Cr.P.C.

      In the case of Abdul Nazar Madani v. State of T.N., (2000) 6 SCC 204 : 2000 Cri LJ 3480 : AIR 2000 SC 2293, the Supreme Court held that:

      “The purpose of the criminal trial is to dispense fair and impartial justice uninfluenced by extraneous considerations. When it is shown that public confidence in the fairness of a trial would be seriously undermined, any party can seek the transfer of a case within the State under Section 407 and anywhere in the country under Section 406 CrPC. The apprehension of not getting a fair and impartial inquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. If it appears that the dispensation of criminal justice is not possible impartially and objectively and without any bias, before any court or even at any place, the appropriate court may transfer the case to another court where it feels that holding of fair and proper trial is conducive. No universal or hard and fast rules can be prescribed for deciding a transfer petition which has always to be decided on the basis of the facts of each case. Convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition. The convenience of the parties does not necessarily mean the convenience of the petitioners alone who approached the court on misconceived notions of apprehension. Convenience for the purposes of transfer means the convenience of the prosecution, other accused, the witnesses and the larger interest of the society.”

      Thus, the Supreme Court has held that convenience of the parties including the witnesses to be produced at the trial is also a relevant consideration for deciding the transfer petition.

      So, it all depends on facts of each case. Transferring a case is a discretionary power, which is exercised in the facts and circumstances of the case being transferred. Usually, such transfers are not ordered as a routine, but in some exceptional cases such transfer can be ordered by the court concerned, including by the CJM under Section 410 Cr.P.C.

      I may point out that after transfer the case would continue from the same stage at which it was left by the previous Magistrate.

      If you are not satisfied with the order of transfer, you can challenge the same in the higher courts if you have some cogent reasons to oppose such transfer.

           


      Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

    • #3285

      May I Thank You Shri.Ashok Dhamija Ji for Your Prompt Reply,

      However i would like to know if i can challenge order of Ld.CMM passed U/s 410 CrPc, on Jurisdiction point of View , as the matter / trial has been shifted to a court that does not have/possess local Jurisdiction for the offence U/s 138, filed by my family member. As 138 offence is Substantive Law whereas 410 CrPc is Procedual Law

      Be pleased to clarify.

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