Supreme Court lays down factors to be considered when deciding transfer petitions

The Supreme Court on Thursday laid down an illustrative list of factors to be examined while considering a plea to transfer the trial of a criminal case [Shri Sendhur Agro & Oil Industries v. Kotak Mahindra Bank]..The Bench of Justices JB Pardiwala and R Mahadevan cautioned that the power to transfer criminal trials under Section 406 of the Code of Criminal Procedure (CrPC) has to be exercised cautiously and only in exceptional situations, where it becomes necessary to do so to provide credibility to the trial..The top court laid down the transfer of trial under Section 406, CrPC may be ordered in only certain scenarios, including the following:1. When it appears that the State machinery or prosecution is acting hand in glove with the accused, and there is likelihood of miscarriage of justice due to the lackadaisical attitude of the prosecution;2. When there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;3.Comparative inconvenience and hardships likely to be caused to the accused, the complainant/ the prosecution and the witnesses, besides the burden to be borne by the State exchequer in making payment of travelling and other expenses of the official and non-official witnesses;4. A communally surcharged atmosphere, indicating some proof of inability in holding a fair and impartial trial because of the accusations made and the nature of the crime committed by the accused;5. Existence of some material from which it can be inferred that some persons are so hostile that they are interfering or are likely to interfere, either directly or indirectly, with the course of justice..The top court explained that Section 406 of the CrPC may be resorted to for the transfer of a case when there is a reasonable apprehension, backed by evidence, that justice may not be done.The mere convenience or inconvenience of the parties may not by itself be sufficient enough to pray for a transfer of trial, the Court held."The court has to appropriately balance the grounds raised in the facts and circumstances of each case and exercise its discretion in a circumspect manner while ordering a transfer under Section 406," the judgment further reads..The Court made these observations while dealing with a case where a company (petitioner) accused of the offence under Section 138 (cheque bouncing cases) of the Negotiable Instruments Act (NI Act) sought the transfer of the trial from a court in Chandigarh to a court in Coimbatore.The company was accused of dishonouring a cheque meant to repay a loan to a bank (payee/ respondent/ complainant).The petitioner contended that the cheque bounce complaint was filed in Chandigarh by the Kotak Mahindra Bank (complainant/ respondent) only to harass the petitioner.The petitioner argued that all transactions between the petitioner and the bank wholly happened in Coimbatore. The transactions referred to included the processing of a loan availed by the company as well as the repayment of this loan through EMIs.The bank maintained that the Chandigarh court could conduct the trial since the cheque in question was presented at the bank's Chandigarh branch. This was because the routing/ collection account in respect of the cheque (in an NPA account) was located at Chandigarh.It was further pointed out that the transfer of the matter to Coimbatore has been sought only on general grounds, such as the inconvenience caused on account of the petitioner's representatives having to travel from Coimbatore to Chandigarh..The Court found merit in the bank's arguments, holding that a cheque bounce complaint can be filed at the location of the payee's bank account or where the cheque is presented for collection.The Bench referred to Section 142(2), introduced via a 2015 amendment to the NI Act, which provided that the jurisdiction to adjudicate upon the cheque dishonor complaint will lie with the court where the branch of the bank with the payee account is located."When a cheque is delivered or issued to a person with liberty to present the cheque for collection at any branch of the bank where the payee or holder in due course, as the case may be, maintains the account then, the cheque shall be deemed to have been delivered or issued to the branch of the bank, in which, the payee or holder in due course, as the case may be, maintains the account, and the court of the place where such cheque was presented for collection, will have the jurisdiction to entertain the complaint alleging the commission of offence punishable under Section 138 of the N.I. Act. In that view of the position of law, the word ‘delivered’ used in Section 142(2)(a) of the NI Act has no significance. What is of significance is the expression ‘for collection through an account’. That is to say, delivery of the cheque takes place where the cheque was issued and presentation of the cheque will be through the account of the payee or holder in due course, and the said place is decisive to determine the question of jurisdiction," the judgment said..The Court further observed that the transfer of such cases has to be guided by principles that would achieve the ends of justice for all parties to the case."The meaning of 'ends of justice' essentially refers to justice for all the parties involved in the litigation ... the argument of the accused that another court might also be empowered to take cognizance of the matter under Section 142, since the cause of action arose within that jurisdiction, cannot by itself be a ground for seeking transfer under Section 406 of the CrPC," the top court said..In view of the same, it dismissed the transfer plea.The Court added that it is open for the petitioner to seek an exemption from having to physically appear before the Chandigarh court or join the trial court proceedings through video conference..Senior Advocate Nikhil Goel along with advocate Pranab Prakash appeared for the petitioner. Senior Advocate Jayant Mehta along with lawyers from M/S Legal Options appeared for the respondent-bank..[Read Judgment]