Supreme Court Explains Factors To Be Kept In Mind While Considering Application For Transfer Of Trial U/S 406 CrPC

The Supreme Court has explained certain factors to be kept in mind while considering an Application for transfer of the trial under Section 406 of the Criminal Procedure Code, 1973 (CrPC).

The Court dismissed a Transfer Petition preferred by a proprietary concern through its proprietor under Section 406 of the CrPC, praying to transfer a Criminal Case pending in the Court of Judicial Magistrate First Class, Chandigarh (Union Territory) to the Court of Metropolitan Magistrate, Coimbatore, Tamil Nadu, essentially on the ground that no cause of action could be said to have arose for the Bank to lodge the Complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) in Chandigarh.

The two-Judge Bench of Justice J.B. Pardiwala and Justice R. Mahadevan took note of the following factors –

(i) 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;

(ii) when there is material to show that the accused may influence the prosecution witnesses or cause physical harm to the complainant;

(iii) 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;

(iv) 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; and

(v) 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.

Senior Advocate Nikhil Goel appeared for the Petitioner while Senior Advocate Jayant Mehta appeared for the Respondent.

Court’s Observations

The Supreme Court in the above regard, observed, “… although no rigid and inflexible rule or test could be laid down to decide whether or not the power under Section 406 Cr.P.C should be exercised, yet it is manifest from a bare reading of sub-sections (2) and (3) of the said section and on an analysis of the decisions of this Court that an order of transfer of trial is not to be passed as a matter of routine and more particularly on the plea of lack of territorial jurisdiction of the court to try the offence under Section 138 of the N.I. Act.”

The Court added that this power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial.

“Section 142 of the N.I. Act in clear terms, provides the complainant with the right to lodge a complaint, before a court, within whose jurisdiction, the branch of the bank where the cheque is delivered for collection, is situated. Therefore, 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 Cr.P.C.”, it noted.

Furthermore, the Court clarified that 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 NI Act.

“For the purpose of transfer of any case or proceedings under Section 406 of the Cr.P.C., the case must fall within the ambit of the expression “expedient for the ends of justice”. Mere inconvenience or hardship that the accused may have to face in travelling from Coimbatore to Chandigarh would not fall within the expression “expedient for the ends of justice”. The case must fall within any of the five situations as narrated in para 49 of this judgment. It is always open for the petitioner accused to pray for exemption from personal appearance or request the Court that he may be permitted to join the proceedings online”, it also said.

The Court, therefore, concluded that no case is made out for transfer of the proceedings in question under Section 406 of CrPC.

Accordingly, the Apex Court dismissed the Transfer Petition.

Cause Title- M/s Shri Sendhur Agro & Oil Industries v. Kotak Mahindra Bank Ltd. (Neutral Citation: 2025 INSC 328)

Appearance:

Petitioner: Senior Advocate Nikhil Goel, AORs C. Solomon, Zulfiqar Ali Khan, Pranab Prakash, Advocates Kaushal Kishore, Bikash Chandra, Amit Pratap Shaunak, Jitendra Kumar Sah, Chetan Bairwa, Mohd Israr Khan, D Durga Devi, and Siddhi Gupta.

Respondent: Senior Advocate Jayant Mehta, Advocates Sonia Dube, Kanchan Yadav, Tanishq Sharma, Chetna Bisht, Saumya Sharma, and Jasleen Virk.

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