Judgment:
ORDER
M.M. Das, J.
1. Heard learned Counsel for the petitioner and the learned Counsel for the opp. party.
2. This is an application under Section 407 Cr.P.C. wherein the petitioner seeks for an order to transfer I.C.C. No. 581 of 2007 pending in the Court of learned J.M.F.C, Cuttack to the Court of learned J.M.F.C, Bhadrak. According to the petitioner, the said complaint case has been filed under Section 138 of the N.I. Act. Certain cheques were issued by the petitioner in favour of opp. party as security being drawn on UCO Bank, Bhadrak. The entire transaction took place in Bhadrak Town. As a matter fact, the cheques were presented by the complainant for encashment at Bhadrak. However, just because the lawyer's notice was issued from Cuttack, the above complaint case has been filed at Cuttack and according to the learned Counsel for the petitioner, the learned Magistrate at Cuttack has no territorial jurisdiction to try the case. He draws the attention of the Court to Section 177 Cr.P.C. which provides that every offence shall be ordinarily enquired into and tried by the Court within whose local jurisdiction it was committed.
3. Learned Counsel for the opp. party relying upon the decision in the case of Smt. Shamshad Begum v. B. Mohammed 2009 AIR SCW 775 submits that the Supreme Court has laid down in the aforesaid decision that the offence under Section 138 of the N.I. Act can be completed on fulfilment of various acts, such as, drawing of the cheque, presentation of the cheque, returning the cheque unpaid by the drawee bank, giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and failure of the drawer to make payment within 15 days of the receipt of the notice. Hence, according to him, commission of any of the above acts within the territorial jurisdiction of any Court, empowers that Court to try the case.. As the notice in the present case was issued from Cuttack, the Court below at Cuttack has jurisdiction to try the case and there is no reason for transferring the case to Bhadrak.
4. In the case of Smt. Shamshad Begum (supra), the Supreme Court was testing the judgment of the Karnataka High Court dismissing the petition filed under Section 482 of the Code of Criminal Procedure, 1973, where a prayer was made to quash the criminal proceeding pending before the Magistrate. The case was one under Section 138 of the N.I. Act. A petition was filed before the High Court on the ground that the Mangalore Court has no jurisdiction to try the case, as it was submitted that the agreement between the parties was entered into at Bangalore and the parties live in Mangalore and the cheque was returned from the bank at Bangalore and, therefore, the Bangalore Court has jurisdiction to try the case. The contrary submission made by the opp. party in the said case was that before issuing notice to the appellant, he shifted his residence to Mangalore and a reply to the said notice was sent by the appellant from Mangalore. Hence, as one of the components of the said offence, i.e., the notice in writing to the drawer of the cheque demanding payment of the cheque amount was sent from Mangalore, the Court at Mangalore had jurisdiction to try the case. The Supreme Court relying upon the law laid down in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. 1999 (7) SCC 510, dismissed the said appeal.
5. Applying the law as laid down in the case of Smt. Shamshad Begum (supra), it would be clear that since the notice was issued from Cuttack in the instant case, the Court at Cuttack has jurisdiction to try the case.
6. Conditions and circumstances under which a criminal case can be transferred from one Court to another by exercise of power conferred under Section 407 Cr.P.C. has been dealt with in a number of decisions of the Apex Court. Convenience of parties including the witnesses to be produced at the trial has been taken as a relevant factor for considering the question of transfer of a criminal case from one Court to another. Convenience for the purpose of transfer means the convenience of the prosecution, the accused, the witnesses and the larger interest of the society. However, there cannot be a straight jacket formula to measure the convenience and the same should be considered by taking the facts of each case into account.
7. In the instant case considering the fact that the petitioner is a farmer and ekes his livelihood from agriculture at Bhadrak and will face immense difficulty, if he is compelled to come to Cuttack to attend the Court and, further, considering the fact that the other components of the offence under Section 138 of the N.I. Act have occurred/taken place at Bhadrak, this Court feels it appropriate that it would be expedient in the interest of justice to transfer the case to the Court of the learned S.D.J.M., Bhadrak.
8. In view of the above it is directed that ICC Case No. 581 of 2007 pending before the Court of the learned J.M.F.C., Cuttack be transferred to the Court of the learned S.D.J.M., Bhadrak and the records be transmitted accordingly. The learned S.D.J.M., Bhadrak on receiving the same shall proceed with the case in accordance with law.
9. The CRLMC is accordingly disposed of.