By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed to transfer Criminal Case No.710 of 2004 from the Court of the learned Judicial Magistrate First Class, Mehsana to the Court of the learned Judicial Magistrate First Class, Surat.
The main submission advanced by Mr.N.M. Kapadia, learned advocate for the petitioner, is that in all six complaints have been lodged against the present petitioner under the provisions of Section 138 of the Negotiable Instruments Act, 1881. That one complaint has been lodged by Narendrabhai Ishwarbhai Patel against the petitioner at Surat, whereas five complaints have been lodged at Mehsana by Ishwarbhai Madhabhai Patel, father of Narendrabhai Ishwarbhai Patel. It is submitted that the complaints have been filed at Mehsana malafidely only with a view to harass the present petitioner. Attention is also invited to the merits of the case. The learned advocate has also invited attention of the Court to the medical case papers of the petitioner to point out various ailments like pancreatitis, hyper tension and diabetes which the petitioner is stated to be suffering from; to submit that on health grounds, it would be very difficult for the petitioner to attend the trial at Mehsana. It is, accordingly, urged that in the circumstances, Criminal Case No.710 of 2004, pending in the Court of learned Judicial Magistrate First Class, Mehsana, is required to be transferred to the Court of the learned Judicial Magistrate First Class, Surat.
In the opinion of this Court, the grounds stated by the learned advocate for the petitioner are not sufficient for transferring the cases from Mehsana to Surat as the same would also apply to the respondent No.4-original complainant, who ordinarily resides at Mehsana.
However, considering the hardships stated by the petitioner, it would be pertinent to refer to the decision of the Supreme Court in Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and others, (2007) 1 SCC 401, wherein has been held as follows :
15. These are days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of inter-State transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings.
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17. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses.
This Court is of the view that considering the law laid down by the Apex Court in the decision cited hereinabove, the difficulties cited by the petitioner can be obviated to a certain extent by permitting the petitioner to move the Court concerned for exempting him from personal appearance. This can be done only after the first appearance of the petitioner in the Court concerned. If any such application is filed by the petitioner, the concerned Court shall exempt him from personal appearance on the following conditions :
the counsel on behalf of the petitioner shall remain present in the Court on days when his case is taken up;
the petitioner will not dispute his identity as an accused in the case and he will remain present in the Court when such presence is imperatively needed, such as at the time of examination under Section 313 of the Code of Criminal Procedure, 1973.
With these observations, this transfer petition is disposed of.
(Harsha Devani, J) Aakar Top