Court No. - 41
Case :- TRANSFER APPLICATION (CRIMINAL) No. - 437 of 2018 Applicant :- Smt. Anubha Singhal Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Prateek Kumar Counsel for Opposite Party :- G.A.
Hon'ble Harsh Kumar,J.
The application for transfer of Complaint Case No. 1122/9/2017 (Yogesh Garg v. Angle Pharma and Another), under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as the 'the NI Act') has been sought to be transferred from the court of Additional Judge, Muzaffar Nagar to the Court of Additional Judge, Bijnor.
Heard Sri Pratik Kumar learned counsel for the applicant, learned AGA for the State and perused the record.
The ground for transfer taken in the application is that the Opposite Party No.2 fraudulently converted the cheque for Rs. 82,000/-, in a cheque for Rs. 8,25,000/-, which is the basis of complaint under Section 138 of the NI Act and since the applicant is a 46 years old lady, suffering from Hypertension, it is not possible for her to attend the Court at Muzaffar Nagar on each and every date. It is also stated that applicant and co- accused moved an Application U/S 482 Cr.P.C. No.20390 of 2017 for quashing the proceedings of complaint case, in which upon her request, matter was sent to Mediation and Conciliation Centre of this Court and order for no coercive action was passed on 2.8.2017 vide Annexure No.4.
It is also submitted that the mediation proceedings before this Court failed and the application under Section 482 was disposed of vide order dated 16.8.2018 at Annexure No.5, in view of the law laid down by the Apex Court in the case of Damodar S. Prabhu v. Sayed Babalal H., 2010(5) SCC 663 and after disposal of the case by the High Court, the applicant moved an application before the Trial Court on 29.9.2018 for sending the matter to Mediation Centre which has been rejected by the Trial Court.
It is further submitted that applicant is ready to repay the disputed amount of Rs. 82,000/- to the Opposite Party No.2 and get the offence compounded by way of compromise the matter but since the Trial Court has rejected her application for ascertaining compounding of offence.
It has been further submitted that since the applicant is a 46 years old lady suffering from Hypertension, therefore, the case may be transferred from Muzzafarnagar to Bijnore. Learned counsel for the applicant also submitted that since the order of no coercive action has been passed at the time of disposal of application under Section 482 on 16.8.2018, the applicant has not appeared before the Trial Court as yet.
Per contra, learned AGA submits that the complaint for dishonour of cheque for Rs. 8,25,000/- under Section 138 of the NI Act was filed by the Opposite Party No.2 against "Angle Pharma through its Proprietor as well as its proprietor Smt Anubha Singhal" on 15.9.2015; that the accused, in the Complaint Case obtained an order Annexure No.4, in her application under Section 482 Cr.P.C. on 2.8.2017 apart from which, her husband filed a Complaint Case against the Opposite Party No.2 regarding the alleged incident of 7.5.2016 committed by him at the Angle Pharma B-14, Nai Basti, District Bijnor regarding which complaint case No. 1115 of 2016 is pending before the Magistrate at Bijnor.
He further submitted that the age of applicant has been mentioned as 46 years. She is quite young lady and the papers regarding her ailment of Hypertension at Annexure No.11 bears overwriting and cuttings. Since she has not appeared even for a single time before the Trial Court at Muzaffar Nagar, the ground for transfer on account of alleged illness does not exist. He also pointed out that in the Complaint Case there are two accused while application for transfer has been moved by only one of them, on which the 1/2 complaint case may not be transferred in piecemeal.
Upon hearing learned counsel for the parties and perusal of records, I find that undisputably reconciliation proceedings at Mediation Centre, High Court Allahabad have failed between the parties. Moreover, the applicant is coming with the case that a cheque for Rs. 82,000/- was given by her, which has been converted into a cheque for Rs. 8,25,000/- in contradiction to the contention of applicant in para 5 regarding payment of Rs, 82,500/-, the question of compounding does not appear correct for which the applicant will have to tender payment.
I find force in the arguments of learned AGA that the applicant is not permitting the Complaint Case under Section 138 of the NI Act, to proceed firstly by moving application under Section 482 and transfer by moving application under Section 407 Cr.P.C.
In view of the above, I find no sufficient ground for transfer complaint case from Muzzafar Nagar to Bijnor and the same is liable to dismissed.
The application for transfer is accordingly dismissed.
Let a copy of order be sent to court concerned through District Judge, Muzzafar Nagar.
Order Date :- 29.10.2018 Akram