M/S Shri Sendhuragro And Oil Industries vs. Kotak Mahindra Bank Ltd.

2025 INSC 328
REPORTABLE

IN THE SUPREME COURT OF INDIA
(CRIMINAL ORIGINAL JURISDICTION)
TRANSFER PETITION (CRL.) NO. 608 OF 2024


M/s Shri Sendhur Agro & Oil Industries ……..Petitioner(s)



Versus

Kotak Mahindra Bank Ltd. ……..Respondent(s)

WITH
T.P.(CRL) NO. 670 OF 2024
T.P.(CRL) NO. 761 OF 2024
T.P.(CRL) NO. 662 OF 2024
T.P.(CRL) NO. 977 OF 2024
T.P.(CRL) NO. 850 OF 2024
Signature Not Verified
Digitally signed by
VISHAL ANAND J U D G M E N T
Date: 2025.03.06
15:03:39 IST
Reason:



1. Since the issues raised in all the captioned transfer petitions are
the same, those were taken up for hearing analogously and are
being disposed of by this common judgment and order.

2. For the sake of convenience, the Transfer Petition (Criminal)
No. 608 of 2024 is treated as the lead matter.

3. This transfer petition filed under Section 406 of the Code of
Criminal Procedure, 1973 (for short, “the Cr.P.C.”) is at the
instance of a proprietary concern through its proprietor with a
prayer to transfer Criminal Case No. 4016 of 2021 titled as
Kotak Mahindra Bank Limited v. M/s Shri Sendhur Agro and
st
Oil Industries pending in the court of Judicial Magistrate I
Class, Chandigarh (UT) 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 (for short, the N.I. Act) in
Chandigarh.

4. In the memorandum of the transfer petition the following has
been pleaded:
Transfer Petition (Crl.) No. 608 of 2024 Page 2 of 87



“ That the Petitioner herein seeks the transfer to Metropolitan
Magistrate Court, Chennai, Tamil Nadu on the following
grounds:
(a) Because in the facts and circumstance of the present case,
the transaction between the Petitioner and the Respondent
wholly happened in Coimbatore and the Courts in Coimbatore
alone will have the jurisdiction to entertain the present criminal
complaint. The Petitioner holds a savings Account in the
Respondent's Coimbatore Branch and the loan was also
processed in the same branch. All the previous EMI were also
deducted from her Bank Account in Coimbatore and credited to
the loan account maintained in the Coimbatore Branch.
Therefore, the Court in Chandigarh will have no jurisdiction to
entertain the present Criminal Complaint.
(b)Because in the facts and circumstances of the Instant/case,
under Sec. 142 of the Act the Court within whose jurisdiction the
Bank where the Cheque, is presented for collection or where the
Cheque is presented for payment alone has the Jurisdiction to
entertain the complaint under Sec.138 of the Act. Whereas the
present Complaint does not satisfy any of the conditions under
the Sec.142.
(c) Because in the facts and circumstances of the present case,
there are already pending proceedings between the Petitioner
and the Respondent in Coimbatore and the Respondent has
purposefully filed the present proceedings in Ahmedabad only
to harass the Petitioner with multiple proceedings in different
States.
Transfer Petition (Crl.) No. 608 of 2024 Page 3 of 87



(d)Because in the facts and circumstances of the instant case the
·Court in Chandigarh had no jurisdiction to entertain the
criminal complaint as the Respondent's headquarters in
Mumbai and it's the branch office in Coimbatore had solely
processed the loan of the Petitioner. Hence the Court in
Chandigarh where no cause of action arose will not have the
jurisdiction to entertain the present proceedings.
(e) Because in the facts and circumstances of the instant case, the
Petitioner had opted to repay the EMI through automatic
deduction facility and the same gets credited automatically into
the loan account maintained by the Branch office in Chennai. The
automatic deduction for the EMI is not branch specific.
Therefore, the same does not satisfy the conditions under Sec. 142
for filing the complaint under Sec. 138 of the Act in Ahmedabad.
(f) Because in the present circumstances the present proceedings
are initiated solely with an intent to harass the Petitioner to travel
all the way to Chandigarh from Kangeyum only to attend the
court proceedings. The Petitioner has been harassed by the
Respondent for over 5 years by using anti-social elements
therefore the Petitioner fears his safety to travel alone to
Chandigarh to attend the proceedings.
(g) Because in the facts and circumstances of the instant case, the
Petitioner doesn't Know anyone in Chandigarh and does not even
know the local language to effectively defend himself in the
criminal proceedings initiated by the Respondent.
(h) Because in the facts and circumstances of the instant case, the
Respondent Bank has already initiated Sarfaesi proceedings for
Transfer Petition (Crl.) No. 608 of 2024 Page 4 of 87



the recovery of entire loan amount. The Respondent and its
employees have colluded and sold the properties of the Petitioner
without any information. The Petitioner has already filed
appropriate proceedings against the Respondent in Coimbatore.
In the said circumstances, the Criminal Complaint under Section
138 of Negotiable Instruments Act is abuse of process of law.”

ORDER PASSED BY THIS COURT
nd
5. On 22 July 2024, this Court passed the following order:
“ Mr. Nikhil Goel, learned senior counsel appearing for the
petitioner submits that the petitioner concern is engaged in the
business of producing coconut oil, selling coconut oil and its
byproducts and is situated at Coimbatore; that the petitioner
availed over-draft limits and terms from the respondent-Bank at
its R.S. Puram branch at Coimbatore; that a loan was granted
against the equitable mortgage of properties located at
Coimbatore and the money was also disbursed at Coimbatore.
The learned senior counsel submits that only for the
presentation of the cheque the Bank has proceeded to
Chandigarh. Issue notice, returnable in four weeks. In the
meantime, there shall be stay of further proceedings in
Complaint Case No.4016 of 2021 titled as “Kotak Mahindra
Bank Ltd. Vs. M/s. Shri Sendhur Agro and Oil Industries”,
pending in the Court of Judicial Magistrate Ist Class, UT,
Chandigarh.”

th
6. Thereafter, on 29 November 2024, the following order was
passed:
Transfer Petition (Crl.) No. 608 of 2024 Page 5 of 87



“1. The learned counsel appearing for the Respondent - Bank
prays for a short adjournment to seek appropriate instructions
in the matters.
2. Prima facie, it appears that the entire transaction had taken
place in Coimbatore, State of Tamil Nadu. However, the Bank
seems to have filed complaints under Section 138 of the
Negotiable Instruments Act, 1881 in Chandigarh.

3. The bank owes an explanation why it thought fit to file
complaints in Chandigarh and not in Coimbatore, Tamil Nadu.

4. Post these matters on 6-12-2024.”


WRITTEN SUBMISSIONS ON BEHALF OF THE
PETITIONER:

7. The written submissions of the petitioner read as under:
“A. The scope of powers under Section 406 CrPC, 1973 (akin
to Section 527 of CrPC, 1898 and Section 447 of BNSS,
2024) is the question which concerns this Hon'ble Court.

B. One aspect of exercise of power of transfer is the introduction
of Section 142A in the Negotiable Instruments Act, 1881 by
Amending Act 26 of 2015, which has retrospective effect.
Clause (2) of Section 142A contemplates a situation where
cases against the same drawer ought to be filed in the same
Court where the first case pertaining to dishonor of cheque
is filed or "transferred". Independent of the fact that the
interpretation of this provision is being considered by this
Transfer Petition (Crl.) No. 608 of 2024 Page 6 of 87



Hon'ble Court in Kedar Bhausaheb Malhari vs. Axis Bank
Ltd. [TP (Crl.) 33 of 2018] where the Court has impleaded
the Union of India, taken assistance of an amicus curie and
also requested the Ld. Attorney General to appear, the
Petitioner submits that in certain scenarios, power of
transfer under Section 406 CrPC should be exercised to
transfer Section 138 Negotiable Instruments Act cases.

C. The Petitioner submits that the invocation of power of
transfer presupposes the existence of jurisdiction. A case
which is filed in a court without jurisdiction should be
subjected to a quashing petition and therefore as a matter of
principle, the power of transfer under Section 406 CrPC is
not sought on the ground that the court from which transfer
is sought does not have jurisdiction. The expression which is
used in all the three codes is "expedient for the ends of
justice" and it is this expression alone which is sought to be
invoked by the Petitioner.

D. The undisputed facts from Transfer Petition (Crl.) No. 608 of
2024 may kindly be noticed. Some of these facts are recorded
in the order issuing notice dated 22.07.2024 –
(a) The Petitioner is a proprietorship concern which deals
with production and distribution of coconut oil and its by-
products.
(b) The Petitioner firm had taken overdraft facility from the
Respondent Bank vide sanction letter dated 19.03.2015 (pg.
6 of Crl. MP No. 155078 of 2024). This was extended till
2078. The Bank's correspondence address was recorded
Transfer Petition (Crl.) No. 608 of 2024 Page 7 of 87



therein as Egmore, Chennai branch and had nothing to do
with Chandigarh.
(c) For this overdraft facility, several collaterals in the form
of land were taken apart from a lien which was created on a
Fixed Deposit of Rs. 25 lakhs. The 11 properties which were
taken as collateral are all lands located in the area of
Kangeyam in Tiruppur district (bifurcated from the erstwhile
Coimbatore district) of Tamil Nadu.

(d) The sanction letter also required the Petitioner borrower
to repay from his HDFC Bank account situated in the
Kangeyam branch.

(e) It is pleaded by the Petitioner at pg 3 that all procedures
for availing the overdraft facility were done in the
Coimbatore branch.

(f) It is further pleaded that the blank cheques of Kotak
Mahindra Bank, Tiruppur were given as surety and all the
EMI's were to be made through ECS facility.

(g) The Petitioner has also pleaded that there are no other
transactions that the Petitioner has with any other branch of
the Respondent Bank.

(h) The Petitioner defaulted on payments of its EMIs in the
year 2018 which resulted in a demand notice under the
SARFAESI Act for a sum of Rs. 2.74 crores. The
Transfer Petition (Crl.) No. 608 of 2024 Page 8 of 87



consequential sale notices and the sale of the Petitioner's
assets also took place in Coimbatore.
(i) The Respondent vide. Its letter dated 05.10.2018 had also
informed the Petitioner that his Account would be declared
as NPA in next two days.
(j) The Petitioner challenged the SARFAESI proceedings
before the Debt Recovery Tribunal at Coimbatore (Annexure
P-2, pg. 28 onwards).
E. Despite all these aforesaid transactions taking place within
the jurisdiction of Tamil Nadu, the Respondent Bank chose
to present the cheque for Rs. 21 lakhs at Chandigarh. The
complaint is annexed at Annexure P-1 (pg. 13 onwards) and
shows the address of the Petitioner to be in Tamil Nadu. The
complaint does not refer to several of the aforementioned
undisputed facts. This complaint is dated 21.04.2021 and is
numbered as CIS No. NACT/4016/2021, while the summons
on this have been issued by the Court of Ld. CJM,
Chandigarh only on 30.04.2024. This factor of issuance of
summons after 3 years of delay also indicates that the
complaint was filed and kept in the Registry only to be used
at the whim of the Respondent Bank.
F. In the aforesaid background, the Petitioner is requesting this
Court to exercise its power of transfer on the anvil of
"expedient for the ends of justice". The following parameters
and precedents may be considered –
i. This Hon'ble Court on 29.11.2024 had called upon the
Respondent Bank to explain the reason for choosing the
jurisdiction of Chandigarh even though the entire
transaction had taken place in Coimbatore. There is,
Transfer Petition (Crl.) No. 608 of 2024 Page 9 of 87



however, no explanation that has been given till date. The
only response in the Counter Affidavit filed is in paragraph
5 which records that the Bank's collection account is located
in Chandigarh. This stand of the Bank might justify the
existence of jurisdiction at Chandigarh but does not
answer/explain the reason for filing a complaint there,
especially when one set of legal proceedings viz. under
SARFAESI Act were undertaken within the jurisdiction of
Tamil Nadu.

ii. As submitted earlier, this is not an issue pertaining to
territorial jurisdiction or an issue of convenience of the
accused, but having undertaken all the proceedings
including initiation of one set of litigation within Tamil
Nadu, it is unjust for the Respondent Bank to choose an
unrelated jurisdiction merely because it has an option of
more than one places where a complaint can be lodged.

iii. The parameters of 'expedient for the ends of justice’
should take into account a situation where availability of
more than one jurisdiction is misused for no extra benefit to
the Complainant.

iv. The legislative intent of Section 142A also contemplates
that holder in due course is not allowed to misuse the
availability of multiple jurisdictions and therefore have
consciously used the expression 'transfer' along with 'filed'
in Section 142A(2).

Transfer Petition (Crl.) No. 608 of 2024 Page 10 of 87



v. This Hon’ble Court recently in Navapavithra G & Ors. vs.
M/s Cholamandalam Investment & Finance Co. Ltd. [TP
(Crl] No.441 of 2024] in its order dated 24.10.2024 had held
that financial institutions should avoid filing proceedings in
various states merely because they have offices there, and
should file proceedings in courts having jurisdiction where
the actual transaction has taken place and where the cause
of action has arisen

vi. Further, this Hon'ble Court in M/s Oasis Marine Pvt. Ltd.
& Ors. vs. M/s Godrej Agrovet Ltd. [TP (Crl.) No. 323-325
of 2023] in order dated 08.11.2024 and in Blue Line
Entertainment Media Ltd. vs. Kotak Mahindra Bank Ltd.
[TP (Crl.) No. 224 of 2020] in order dated 31.10.2022 has
allowed similar petitions where the Respondent had
instituted other recovery proceedings in a different
jurisdiction. The Petitioner submits that they are identically
situated.

vii. Moreover, this Hon’ble Court in several cases has
allowed transfer petitions when multiple Section 138 NI Act
complaint cases are pending against a drawer in different
locations. For instance, in Sri Lakshmi Agencies v. Rallis
India Ltd., (2006) 13 SCC 312, transfer petition was allowed
considering the convenience of the parties and the fact that
the Respondent company was a multinational company with
offices all over India. Some other similar cases are A.E.
Premanand v. Escorts Finance Ltd., (2004) 13 SCC 527;
Global Infrastructure & Technologies Ltd. v. G.K. Builders,
Transfer Petition (Crl.) No. 608 of 2024 Page 11 of 87



(2005) 12 SCC 427; Vikram Tractors v. Escorts Ltd., (2005)
10 SCC 80; Videocon International Ltd. v. Sujana Corpn.
Ltd., (2005) 13 SCC 125.

The Petitioner submits that the same principle is applicable
here, since two separate prosecutions relating to the same
transaction are being undertaken in different jurisdictions
against him.

viii. In BR Gupta & Anr. vs. Rohit Jain, (2007) 7 SCC 454,
this Hon'ble Court exercised its power under Section 406
CrPC since the Petitioner therein was being subjected to a
Section 138 NI Act complaint case as well as an FIR for
cheating and forgery relating to the same transaction, in two
different jurisdictions.

ix. A 3-judge bench of this Hon'ble Court in Harman
Electronics (P) Ltd. v. National Panasonic India (P) Ltd.,
(2009) 1 SCC 720, para 21 had also noted that - "We cannot,
as things stand today, be oblivious of the fact that a banking
institution holding several cheques signed by the same
borrower can not only present the cheque for its encashment
at four different places but also may serve notices from four
different places so as to enable it to file four complaint cases
at four different places. This only causes grave harassment
to the accused. It is, therefore, necessary in a case of this
nature to strike a balance between the right of the
complainant and the right of an accused vis-a-vis the
provisions of the Code of Criminal Procedure."
Transfer Petition (Crl.) No. 608 of 2024 Page 12 of 87




x. For interpreting the phrase "expedient for the ends of
justice", it is worthwhile to mention this Hon'ble Court's
interpretation of the phrase "justice, equality and good
conscience”. In M. Siddiq (Ram Janambhumi Temple-5 J.)
v. Suresh Das, (2020) 1 SCC 1, this Hon'ble Court traced the
origins of the phrase in Roman law. Paragraphs 1000 - 1022
deal with the origin of this phrase and broadly refers to a
situation where adherence to written law leads to "Unjust
Outcome" (Paragraph 1001). It is this principle, in most
humble submission of the Petitioner, which ought to be the
basis for Section 406 Petitions.

xi. The other factors which this Hon'ble Court has
considered towards ends of justice is not the convenience of
the accused but the convenience of possible witnesses, the
cost to be incurred by both the prosecution and the defence
witness to travel a long way, the language in which the
proceedings will be undertaken, etc.

G. The following set of judgments may be considered in addition
to the abovementioned-
i. The proposition that the power under Section 406 would
not be ever used for the convenience of the accused is too
broad and defeats the expression in Section 406, i.e.
'expedient for the ends of justice'. This proposition has been
used in cases where this Hon'ble Court has held that it is not
the convenience of a single accused, rather the convenience
of the other accused (if any), the witnesses, the prosecution
Transfer Petition (Crl.) No. 608 of 2024 Page 13 of 87



and the larger interest of the society needs to be cumulatively
seen - held in Abdul Nazar Madani vs. State of Tamil Nadu
& Anr., (2000) 6 SCC 204, para 7 - followed in Nahar Singh
Yadau vs. Union of India, (2011) 1 SCC 307; Mrudul M
Damle & Anr. s. CBI, (2012) 5 SCC 706; Harita Sunil Parab
vs. State of NCT of Delhi, (2018) 6 SCC 358. In Sri Jayendra
Saraswathy vs. State of TN & Ors, (2005) 8 SCC 771, para
25, apart from the above consideration of convenience, this
Hon'ble Court also took into account the language in which
the proceedings will take place, and the witnesses will testify
in before allowing the transfer petition.

ii. There are judgments on Section 138 NI Act in which
Transfer Petitions have been dismissed, like Kaushik
Chatterjee Vs. State of Haryana. & Ors., (2020) 10 SCC 99.
However, these are cases where the respective Petitioners
argued the issue of territorial jurisdiction.

iii. This Hon'ble Court has dealt with various stages of
development of law of jurisdiction under NI Act in Yogesh
Upadhyay & Anr. as. Atlanta Ltd., 2023 SCC OnLine SC
170, paras 5-13. This is cited to indicate a recent decision
on how general jurisdiction under Section 138 NI Act has
been viewed by this Hon'ble Court.”

8. In such circumstances referred to above the petitioner prayed
that there being merit in his transfer petition the same may be
Transfer Petition (Crl.) No. 608 of 2024 Page 14 of 87



allowed and the proceedings be transferred from the UT of
Chandigarh to the State of Tamil Nadu.

WRITTEN SUBMISSIONS ON BEHALF OF THE
RESPONDENT BANK:
9. The written submissions filed by the respondent Bank read as
under:
“A. It is submitted that the Respondent is Banking company
within the Banking Regulation Act, 1949. On the basis of
representations made by the petitioner, the respondent extended
credit facilities to the petitioner and its group companies. The
petitioners however defaulted on repayments and as of July
2022, owed a sum of more than Rs. 34.14 Cr. to the Respondent.

B. The Respondent Bank filed a Complaint under Section 138 of
the Negotiable Instrument Act (hereinafter referred to as ‘the
said Act’) in accordance with law before the competent court
within whose jurisdiction the branch of the bank where the payee
maintains the account is situated. In this regard it is submitted
the Cheque was presented at Respondent’s Chandigarh Branch
for the reason that the routing/collection account in respect of
the subject cheque (in a NPA account) was located at
Chandigarh.

C. Significantly, the petitioner has in its written submissions
clarified that it is not disputing the jurisdiction of the court
Transfer Petition (Crl.) No. 608 of 2024 Page 15 of 87



where the complaint was filed. In fact, it is the petitioner’s
contention that the filing of the transfer petitions (as opposed to
a quashing petition) pre-supposes the existence of jurisdiction of
the court from where the proceedings are sought to be
transferred.

D. Section 142 A of the Negotiable Instrument Act stipulates the
conditions when the Complaint filed under Section 138 may be
transferred. The object of the provision is that all the complaint
cases arising out of one transaction should be tried at one place.
In the present cases as well as the connected cases, the
Respondent has filed cases at Chandigarh only; thus, no ground
under Section 142 A to seek transfer arises.

E. The transfer petitions are not supported by any sufficient
grounds It is most respectfully submitted that the Petitioner has
sought transfer only on the general grounds viz the distance and
the difference in language. The Petitioner has not pleaded (i)
any specific problem or health issue which would make it
difficult for him to attend the proceedings at Chandigarh (ii)any
miscarriage of justice that may happen if the proceedings are
continued at Chandigarh (iii) difficulty in understanding
English language which is uniformly used in all the courts. It is
most respectfully submitted that powers under Section 406 of the
CrPC to transfer cases may be exercised only when such
transfer is expedient for the ends of justice. This Hon’ble Court
has consistently held that the powers under Section 406 of the
CrPC are discretionary powers and ought to be used sparingly.
In Bhiaru Ram Vs. CBI (Transfer Petition (Crl.) No. 37 of 2009)
Transfer Petition (Crl.) No. 608 of 2024 Page 16 of 87



(judgment and order dated 3.8.2010), this Hon’ble Court
observed that “that for the ends of justice, this Court can
transfer any criminal case or appeal to any place. In order to
transfer a case from one State to another or from one place to
another, there must be “reasonable apprehension” on the part
of the party to a case that justice may not be done. Mere
allegation that there is apprehension that justice will not be
done, cannot be the basis of transfer.”

It is humbly submitted that the petitioner has failed to make-out
a case which would warrant exercise of powers by this Hon’ble
Court under Section 406 of the Cr.P.C.

F. It is submitted that the Virtual Facility is available in courts
in Chandigarh and the option to attend the hearing virtually is
always available to the Petitioner. Instead of approaching Trial
Court and moving an application for exemption therein and
satisfying the Trial Court regarding the necessity of such
exemption, the Petitioner has directly approached this Hon’ble
Court.

G. It is submitted that the cheque bouncing cases filed by the
respondent in Chandigarh were prior in time to the original
application filed before the DRT, Coimbatore.

H. It is further submitted that there are a batch of cases pending
in Chandigarh. The Respondent has filed all cases arising out of
the transaction at one single place viz Chandigarh. Thus, no
inconvenience could have been caused to the Petitioner.
Transfer Petition (Crl.) No. 608 of 2024 Page 17 of 87



I. It is further submitted that there are various cases pending at
Chandigarh District Court arising out the same transaction in
which no Transfer Petition has been filed. It is submitted that
there are 23 cases pending in Chandigarh out of which the
transfer petition has been filed by the petitioner only in the
present batch of cases and in two more cases. To the best of
knowledge of the respondent, no other transfer petition has been
filed in the other connected cases. A list of the cases pending in
Chandigarh court are annexed herewith and marked as
Annexure -A (Page No. 6 to 7).

J. It is submitted that transfer of some of the cases arising out of
the transaction would be contrary to the object of the
Amendment Act of 2015 and in particular Section 142A (2) &
(3) inserted vide the said amendment.

K. The Respondent seek to put forth the following heads of
submissions alongwith citations in support thereof:-
(a) Complaint case Under Section 138 of the NI Act cannot be
transferred at the convenience of the accused
(i) S. Nalini Jayanthi vs M. Ramasubba Reddy, TP (Crl)
655/2022 (Paragraph 2)
(ii) Kasthuripandian S Vs RBL Bank Limited, TP (Crl)
No.515/2024 (Paragraph 1)

(b) Under Section 142 (2) (a) of the NI Act, the court within
whose jurisdiction the branch of the bank where the payee
maintains the account is situated, will have jurisdiction to try
the offence. The ground that when head office was in Siliguri,
Transfer Petition (Crl.) No. 608 of 2024 Page 18 of 87



the complaint has been filed in Agra to harass the Petitioner,
was held, in the facts of that case, not to be sufficient ground to
seek transfer.

(i) Himalaya Self Farming Group & Ant vs M/s Goyal
Feed Suppliers, TP (Crl) 273/2020 (Paragraph 5)

(c) Mere language factor/convenience of a party is not enough
ground to seek transfer.

(i) Rajkumar Sabu vs Sabu vs Sabu trade private limited,
2021 SCC Online SC 378 (Paragraph 8-10)

(d) Mere convenience of a party is not enough. The
apprehension must be reasonable.

(i) Bhiaru Ram & Ors. vs CBI & Anr., (2010) 7 SCC 799
(Paragraph 9 to 15)

(e) Jurisdiction under the Section 406 of the CrPC ought to be
sparingly used.

(i) Nahar Singh Yadav vs UOI & Ors, (2011) 1 SCC 307
(Paragraph 29)”

10. In such circumstances referred to above, the learned counsel
appearing for the Bank prayed that there being no merit in the
transfer petition, the same may be rejected.
Transfer Petition (Crl.) No. 608 of 2024 Page 19 of 87



ANALYSIS

11. Having heard the learned counsel appearing for the parties and
having gone through the materials on record the following
questions fall for our consideration.
i. Whether a complaint filed under Section 138 of the N.I.
Act can be ordered to be transferred from one court to the
other in exercise of powers under Section 406 of the
Cr.P.C. on the ground of lack of territorial jurisdiction of
the court in which the complaint is filed?
ii. Assuming that the court in which the complaint filed
under Section 138 of the N.I. Act lacks territorial
jurisdiction to try the same, then is it permissible for this
court in exercise of powers under Section 406 of the
Cr.P.C. to transfer the said complaint to the court having
territorial jurisdiction to try the offence?
iii. Whether the expression “ that for the ends of justice, this
Court can transfer any criminal case or appeal to any
place.” in Section 406 Cr.P.C. embraces in itself the lack
of territorial jurisdiction of the court to try the offence
under Section 138 N.I. Act?

Transfer Petition (Crl.) No. 608 of 2024 Page 20 of 87



12. Before adverting to the rival submissions canvassed on either
side, we must look into a few relevant provisions of the N.I. Act.
Section 138 of the N.I. Act reads thus:
“ 138. Dishonour of cheque for insufficiency, etc., of funds
in the account.—
Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any amount
of money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability,
is returned by the bank unpaid, either because of the amount
of money standing to the credit of that account is insufficient
to honour the cheque or that it exceeds the amount arranged
to be paid from that account by an agreement made with that
bank, such person shall be deemed to have committed an
offence and shall, without prejudice to any other provisions
of this Act, be punished with imprisonment for a term which
may be extended to two years, or with fine which may extend
to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply
unless—
(a)the cheque has been presented to the bank within a period
of six months from the date on which it is drawn or within
the period of its validity, whichever is earlier;
(b)the payee or the holder in due course of the cheque, as
the case may be, makes a demand for the payment of the
said amount of money by giving a notice in writing, to the
drawer of the cheque, [within thirty days of the receipt of
information by him from the bank regarding the return of the
cheque as unpaid; and
(c)the drawer of such cheque fails to make the payment of
the said amount of money to the payee or, as the case may
Transfer Petition (Crl.) No. 608 of 2024 Page 21 of 87



be, to the holder in due course of the cheque, within fifteen
days of the receipt of the said notice.”

13. What is relevant for our purpose is Section 142 of the N.I. Act.
Section 142 relates to the cognizance of offences. Section 142
reads thus:
“142. Cognizance of offences.—
(1)Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)—
(a)no court shall take cognizance of any offence
punishable under section 138 except upon a complaint, in
writing, made by the payee or, as the case may be, the
holder in due course of the cheque;
(b)such complaint is made within one month of the
date on which the cause of action arises under clause (c) of
the proviso to section 138: Provided that the cognizance of
a complaint may be taken by the Court after the prescribed
period, if the complainant satisfies the Court that he had
sufficient cause for not making a complaint within such
period.
(c)no court inferior to that of a Metropolitan
Magistrate or a Judicial Magistrate of the first class shall
try any offence punishable under section 138.

(2) The offence under section 138 shall be inquired into and
tried only by a court within whose local jurisdiction, —
(a)if the cheque is delivered for collection through
an account, the branch of the bank where the payee or
holder in due course, as the case may be, maintains the
account, is situated; or
Transfer Petition (Crl.) No. 608 of 2024 Page 22 of 87



(b)if the cheque is presented for payment by the
payee or holder in due course, otherwise through an
account, the branch of the drawee bank where the drawer
maintains the account, is situated.”

14. Section 142-A of the N.I. Act provides for validation for transfer
of pending cases. Section 142-A reads thus:
“Validation for transfer of pending cases.—
(1)Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 or any judgment, decree, order
or direction of any court, all cases transferred to the court
having jurisdiction under sub-section (2) of section 142, as
amended by the Negotiable Instruments (Amendment)
Ordinance, 2015, shall be deemed to have been transferred
under this Act, as if that sub-section had been in force at all
material times.
(2)Notwithstanding anything contained in sub-section (2) of
section 142 or sub-section (1), where the payee or the holder
in due course, as the case may be, has filed a complaint
against the drawer of a cheque in the court having
jurisdiction under sub-section (2) of section 142 or the case
has been transferred to that court under sub-section (1) and
such complaint is pending in that court, all subsequent
complaints arising out of section 138 against the same
drawer shall be filed before the same court irrespective of
whether those cheques were delivered for collection or
presented for payment within the territorial jurisdiction of
that court.
(3)If, on the date of the commencement of the Negotiable
Instruments (Amendment) Act, 2015, more than one
prosecution filed by the same payee or holder in due course,
Transfer Petition (Crl.) No. 608 of 2024 Page 23 of 87



as the case may be, against the same drawer of cheques is
pending before different courts, upon the said fact having
been brought to the notice of the court, such court shall
transfer the case to the court having jurisdiction under sub-
section (2) of section 142, as amended by the Negotiable
Instruments (Amendment) Ordinance, 2015, before which
the first case was filed and is pending, as if that sub-section
had been in force at all material times.”


15. This court in the case of Yogesh Upadhaya and Another v.
Atlanta Limited reported in 2023 SCC OnLine SC 170 had the
occasion to consider the plea for transfer filed under Section 406
Cr.P.C. in connection with six complaint cases filed under
Section 138 and 142 of the N.I. Act respectively. While
considering the plea for transfer, the court had the opportunity
to consider Section 142(2) contained in the statute book along
with Section 142-A.

16. The relevant observations in Yogesh Upadhaya (Supra) read as
thus:

“ 6. In K. Bhaskaran v. Sankaran Vaidhyan Balan [(1999)
7 SCC 510], this Court held that an offence under
Section 138 of the Act of 1881 has five components : (1)
drawing of the cheque, (2) presentation of the cheque to the
Transfer Petition (Crl.) No. 608 of 2024 Page 24 of 87



bank, (3) returning of the cheque unpaid by the drawee
bank, (4) giving notice in writing to the drawer of the
cheque demanding payment of the cheque amount, and (5)
failure of the drawer to make payment within 15 days of the
receipt of the notice. It was further held that the Courts
having jurisdiction over the territorial limits wherein any
of the five acts, that constitute the components of the
offence, occurred would have the jurisdiction to deal with
the case and if the five acts were done in five different areas,
any one of the Courts exercising jurisdiction in those five
areas would have jurisdiction and the complainant could
choose any one of those Courts.
7. Thereafter, in Dashrath Rupsingh Rathod v. State of
Maharashtra [(2014) 9 SCC 129], a 3-Judges Bench of this
Court observed that the return of the cheque by the drawee
bank would alone constitute commission of the offence
under Section 138 of the Act of 1881 and would indicate
the place where the offence is committed. It was, therefore,
held that the place, situs or venue of judicial inquiry and
trial of the offence must logically be restricted to where the
drawee bank is located, i.e., where the cheque is
dishonoured upon presentation and not where the
complainant’s bank is situated.
8. In this regard, it may be noted that Section 142 of the Act
of 1881, titled ‘Cognizance of Offences’, provided that,
notwithstanding anything contained in the Criminal
Procedure Code, 1973, no Court shall take cognizance of
an offence punishable under Section 138 except on a
Transfer Petition (Crl.) No. 608 of 2024 Page 25 of 87



complaint in writing made by the payee or, as the case may
be, the holder in due course of the cheque; such complaint
is made within one month of the date on which the cause of
action arises under clause I of the proviso to Section 138;
and no Court inferior to that of a Metropolitan Magistrate
or a Judicial Magistrate of the First Class shall try an
offence punishable under Section 138.
9. Significantly, the aforestated original Section 142 of
the Act of 1881 was renumbered as Section 142(1) when
amendments were made in the Act of 1881 by
the Negotiable Instruments (Amendment) Act, 2015 (Act 26
of 2015). Further, Section 142(2) was inserted in the statute
book along with Section 142-A. The newly inserted Section
142(2), to the extent relevant, states that the offence under
Section 138 shall be inquired into and tried only by a Court
within whose local jurisdiction - (a) if the cheque is
delivered for collection through an account, the branch of
the bank where the payee or holder in due course, as the
case may be, maintains the account, is situated.
10. This being the statutory scheme, stress is laid by Mr.
Chirag M. Shroff, learned counsel, upon the words: ‘shall
be inquired into and tried only by a Court within whose
local jurisdiction……’in Section 142(2) to contend that the
Courts at Nagpur would have exclusive jurisdiction in
relation to the dishonoured cheques presented by the
respondent company through its bank at Nagpur.
Transfer Petition (Crl.) No. 608 of 2024 Page 26 of 87



11. Perusal of the Statement of Objects and Reasons in
Amendment Act 26 of 2015 makes it amply clear that
insertion of Sections 142(2) and 142-A in the Act of
1881 was a direct consequence of the judgment of this
Court in Dashrath Rupsingh Rathod (supra). Therefore, the
use of the phrase: ‘shall be inquired into and tried only by
a Court within whose local jurisdiction……’in Section
142(2) of the Act 1881 is contextual to the ratio laid down
in Dashrath Rupsingh Rathod (supra) to the contrary,
whereby territorial jurisdiction to try an offence under
Section 138 of the Act of 1881 vested in the Court having
jurisdiction over the drawee bank and not the
complainant’s bank where he had presented the cheque.
Section 142(2) now makes it clear that the jurisdiction to
try such an offence would vest only in the Court within
whose jurisdiction the branch of the Bank where the cheque
was delivered for collection, through the account of the
payee or holder in due course, is situated. The newly
inserted Section 142-A further clarifies this position by
validating the transfer of pending cases to the Courts
conferred with such jurisdiction after the amendment.
12. The later decision of this Court in Bridgestone India
Private Limited v. Inderpal Singh [(2016) 2 SCC 75]
affirmed the legal position obtaining after the amendment
of the Act of 1881 and endorsed that Section 142(2)(a) of
the Act of 1881 vests jurisdiction for initiating proceedings
for an offence under Section 138 in the Court where the
cheque is delivered for collection, i.e., through an account
Transfer Petition (Crl.) No. 608 of 2024 Page 27 of 87



in the branch of the bank where the payee or holder in due
course maintains an account. This Court also affirmed
that Dashrath Rupsingh Rathod (supra) would not non-suit
the company in so far as territorial jurisdiction for
initiating proceedings under Section 138 of the Act of
1881 was concerned.”
(Emphasis supplied)

17. In Yogesh Upadhaya (Supra) , this Court also considered the
effect of the non obstante clause in Section 142(1) of the N.I.
Act so as to examine whether the same would override Section
406 Cr.P.C. In this regard the court observed thus:
“13. Therefore, institution of the first two complaint cases
before the Courts at Nagpur is in keeping with the legal
position obtaining now. However, the contention that
the non obstante clause in Section 142(1) of the Act of
1881 would override Section 406 Cr. P.C. and that it would
not be permissible for this Court to transfer the said
complaint cases, in exercise of power thereunder, cannot be
countenanced. It may be noted that the non obstante clause
was there in the original Section 142 itself and was not
introduced by way of the amendments in the year 2015,
along with Section 142(2). The said clause merely has
reference to the manner in which cognizance is to be taken
in offences under Section 138 of the Act of 1881, as a
departure has to be made from the usual procedure
inasmuch as prosecution for the said offence stands
postponed despite commission of the offence being
Transfer Petition (Crl.) No. 608 of 2024 Page 28 of 87



complete upon dishonour of the cheque and it must
necessarily be in terms of the procedure prescribed. The
clause, therefore, has to be read and understood in the
context and for the purpose it is used and it does not lend
itself to the interpretation that Section 406 Cr. P.C. would
stand excluded vis-à-vis offences under Section 138 of
the Act of 1881. The power of this Court to transfer pending
criminal proceedings under Section 406 Cr. P.C. does not
stand abrogated thereby in respect of offences under
Section 138 of the Act of 1881. It may be noted that this
Court exercised power under Section 406 Cr. P.C. in
relation to offences under Section 138 of the Act of
1881 even during the time the original Section 142 held the
field. In A.E. Premanand v. Escorts Finance Ltd. [(2004)
13 SCC 527], this Court took note of the fact that the
offences therein, under Section 138 of the Act of 1881, had
arisen out of one single transaction and found it
appropriate and in the interest of justice that all such cases
should be tried in one Court. We, therefore, hold that,
notwithstanding the non obstante clause in
Section 142(1) of the Act of 1881, the power of this Court
to transfer criminal cases under Section 406 Cr.
P.C. remains intact in relation to offences under
Section 138 of the Act of 1881, if it is found expedient for
the ends of justice.

14. In the case on hand, as the six complaint cases pertain
to the same transaction, it would be advisable to have a
common adjudication to obviate the possibility of
contradictory findings being rendered in connection
therewith by different Courts. As four of the six cases have
been filed by the respondent company before the Dwarka
Courts at New Delhi and only two such cases are pending
Transfer Petition (Crl.) No. 608 of 2024 Page 29 of 87



before the Courts at Nagpur, Maharashtra, it would be
convenient and in the interest of all concerned, including
the parties and their witnesses, that the cases be transferred
to the Dwarka Courts at New Delhi.”

18. Thus, in Yogesh Upadhaya (supra), this Court took note of K.
Bhaskaran v. Sankaran Vaidhyan Balan reported in (1999) 7
SCC 510 , wherein it was held that an offence under Section 138
of the N.I. Act has five components:
(i) drawing of the cheque,
(ii) presentation of the cheque to the bank,
(iii) returning of the cheque unpaid by the drawee bank,
(iv) giving notice in writing to the drawer of the cheque
demanding payment of the cheque amount, and
(v) failure of the drawer to make payment within 15 days of the
receipt of the notice.

19. It was further held that the jurisdiction to deal with the case vests
in the Court having jurisdiction over the territorial limits
wherein any of the five acts referred to above that constitute the
components of the offence, occurred. If the five acts were done
in five different areas, then any one of the Courts exercising
Transfer Petition (Crl.) No. 608 of 2024 Page 30 of 87



jurisdiction in those five areas would have jurisdiction and the
complainant could choose any one of those Courts.

20. Further, it relied on Dashrath Rupsingh Rathod v. State of
Maharashtra , reported in (2014) 9 SCC 129 , wherein it was
held that the place, situs or venue of judicial inquiry and trial of
the offence must logically be restricted to where the drawee bank
is located, i.e., where the cheque is dishonoured upon
presentation and not where the complainant’s bank is situated.

21. The Court took note of Section 142 of the N.I. Act and the
Negotiable Instruments (Amendment) Act, 2015, and said that
the newly inserted Section 142(2) provides that the offence
under Section 138 shall be inquired into and tried only by a
Court within whose local jurisdiction – (a) if the cheque is
delivered for collection through an account, the branch of the
bank where the payee or holder in due course, as the case may
be, maintains the account, is situated.

22. The Court after examining the Statement of Objects and Reasons
in the N.I. Amendment Act, 2015, stated that the insertion of
Sections 142(2) and 142-A in the N.I. Act was a direct
Transfer Petition (Crl.) No. 608 of 2024 Page 31 of 87



consequence of the judgment in Dashrath Rupsingh Rathod
(supra) . Section 142(2) now makes it clear that the jurisdiction
to try such an offence would vest only in the Court within whose
jurisdiction the branch of the Bank where the cheque was
delivered for collection, through the account of the payee or
holder in due course, is situated. The newly inserted Section
142-A further clarifies this position by validating the transfer of
pending cases to the Courts conferred with such jurisdiction
after the amendment came into force.

23. The Court further noted that Bridgestone India Private Limited
(Supra) affirmed the change in legal position after the
amendment of the N.I. Act and endorsed that Section 142(2)(a)
vests jurisdiction for initiating proceedings for an offence under
Section 138 in the Court where the cheque is delivered for
collection, i.e., through an account in the branch of the bank
where the payee or holder, in due course, maintains an account.

24. Therefore, the Court said that the institution of the first two
complaint cases before the Courts at Nagpur would be in
accordance with the changed legal position after the amendment
came into force. However, it rejected the contention that the non
Transfer Petition (Crl.) No. 608 of 2024 Page 32 of 87



obstante clause in Section 142(1) of the NI Act would override
Section 406 CrPC and that it would not be permissible for this
Court to transfer the said complaint cases.

25. The Court noted that the non obstante clause was already present
in the original Section 142(1) and was not introduced by way of
the amendments in the year 2015, along with Section 142(2).
The non obstante clause merely has reference to the manner in
which cognizance is to be taken in an offence under Section 138.
The same must not be construed to mean that the power of this
Court to transfer pending criminal proceedings under Section
406 CrPC stands abrogated thereby in respect of an offence
under Section 138 of the NI Act.

26. After placing reliance on A.E. Premanand v. Escorts Finance
Ltd. , reported in (2004) 13 SCC 52 , the Court had held that
notwithstanding the non obstante clause in Section 142(1) of the
NI Act, the power of this Court to transfer criminal cases under
Section 406 Cr.P.C. remains intact in relation to an offence under
Section 138 of the N.I. Act, if it is found expedient for the ends

of justice to order such transfer.

Transfer Petition (Crl.) No. 608 of 2024 Page 33 of 87



27. Before we proceed further it is necessary to clarify that in
Yogesh Upadhaya (supra) this Court was dealing with the
transfer of six complaint cases under Sections 138 and 142 of
the N.I. Act. Ultimately, considering Section 142(2) along with
Section 142-A of the N.I. Act, this Court held that two out of six
complaints instituted at Nagpur were in accordance with the
legal position. However, since the other four complaints also
pertained to the same transaction, the court felt that it would be
advisable to have a common adjudication with a view to obviate
the possibility of any contradictory findings being rendered in
connection with the said complaints by different courts. In such
circumstances, all the six complaints were ordered to be
transferred to the South-west district courts, Dwarka, New
Delhi.

SECTION 406 OF THE CODE OF CRIMINAL PROCEDURE, 1973


28. We now proceed to consider Section 406 of the Cr.P.C. Section
406 Cr.P.C. reads as under:
“ 406. Power of Supreme Court to transfer cases and appeals.
(1) Whenever it is made to appear to the Supreme Court that an
order under this section is expedient for the ends of justice, it
may direct that any particular case or appeal be transferred
Transfer Petition (Crl.) No. 608 of 2024 Page 34 of 87



from one High Court to another High Court or from a Criminal
Court subordinate to one High Court to another Criminal Court
of equal or superior jurisdiction subordinate to another High
Court.
(2)The Supreme Court may act under this section only on the
application of the Attorney-General of India or of a party
interested, and every such application shall be made by motion,
which shall, except when the applicant is the Attorney-General
of India or the Advocate-General of the State, be supported by
affidavit or affirmation.
(3) Where any application for the exercise of the powers
conferred by this section is dismissed, the Supreme Court may,
if it is of opinion that the application was frivolous or vexatious,
order the applicant to pay by way of compensation to any person
who has opposed the application such sum not exceeding one
thousand rupees as it may consider appropriate in the
circumstances of the case.”

29. The present section corresponds to Section 527 of the old Cr.P.C.
The Cr.P.C. clothes this Court with the power under Section 406
to transfer a case or appeal from one High Court or a Court
subordinate to one High Court to another High Court or to a
Court subordinate thereto. The expression therein “expedient
for the ends of justice” assumes significance.

30. The power to transfer vested in the High Court, so far as the
Cr.P.C. is concerned, is dealt with and was intended by the
Legislature to be dealt with solely by Section 407 (Section 526
Transfer Petition (Crl.) No. 608 of 2024 Page 35 of 87



of the old Cr.P.C.). On the other hand, Section 406(1) (Section
527(1) of the old CrPC) clearly implies that it is only the
Supreme Court that has the power to transfer a case pending in
a Court subordinate to one High Court to be tried by a Court
subordinate to another High Court.
31. A case is transferred by virtue of the powers under Section 406
if there is a reasonable apprehension on the part of a party to a
case that justice will not be done. There, however, must be
reliable material from which it can be inferred that there are
impediments that are interfering or likely to interfere, either
directly or indirectly, with the cause of justice.

POSITION OF LAW

32. In Kaushik Chatterjee v. State of Haryana and Ors. reported in
(2020) 10 SCC 92 , this Court, in an identical situation like the
one on hand, held as under:

“8. Thus, in effect, transfer is sought primarily on two grounds,
namely, (i) lack of territorial jurisdiction and (ii) apprehension
of bias.
xxx xxx xxx
17. As seen from the pleadings and the rival contentions, the
petitioner seeks transfer, primarily on the ground of lack of
territorial jurisdiction. While the question of territorial
Transfer Petition (Crl.) No. 608 of 2024 Page 36 of 87



jurisdiction in civil cases, revolves mainly around (i) cause of
action; or (ii) location of the subject-matter of the suit or (iii)
the residence of the defendant, etc., according as the case may
be, the question of territorial jurisdiction in criminal cases
revolves around (i) place of commission of the offence or (ii)
place where the consequence of an act, both of which constitute
an offence, ensues or (iii) place where the accused was found or
(iv) place where the victim was found or (v) place where the
property in respect of which the offence was committed, was
found or (vi) place where the property forming the subject-
matter of an offence was required to be returned or accounted
for, etc., according as the case may be.

18. While jurisdiction of a civil court is determined by (i)
territorial and (ii) pecuniary limits, the jurisdiction of a criminal
court is determined by (i) the offence and/or (ii) the offender. But
the main difference between the question of jurisdiction raised
in civil cases and the question of jurisdiction arising in criminal
cases, is two-fold.

18.1. The first is that the stage at which an objection as to
jurisdiction, territorial or pecuniary, can be raised, is regulated
in civil proceedings by Section 21 of the Code of Civil
Procedure, 1908. There is no provision in the Criminal
Procedure Code akin to Section 21 of the Code of Civil
Procedure.

18.2. The second is that in civil proceedings, a plaint can be
returned, under Order 7 Rule 10 CPC, to be presented to the
proper court, at any stage of the proceedings. But in criminal
proceedings, a limited power is available to a Magistrate under
Section 201 of the Criminal Procedure Code, to return a
complaint. The power is limited in the sense (a) that it is
Transfer Petition (Crl.) No. 608 of 2024 Page 37 of 87



available before taking cognizance, as Section 201 uses the
words “Magistrate who is not competent to take cognizance”
and (b) that the power is limited only to complaints, as the word
“complaint”, as defined by Section 2(d), does not include a
“police report”.

19. Chapter XIII of the Code of Criminal Procedure, 1973
contains provisions relating to jurisdiction of criminal courts in
inquiries and trials. The Code maintains a distinction between
(i) inquiry; (ii) investigation; and (iii) trial. The words “inquiry”
and “investigation” are defined respectively, in clauses (g) and
(h) of Section 2 of the Code.

20. The principles laid down in Sections 177 to 184 of the Code
(contained in Chapter XIII) regarding the jurisdiction of
criminal courts in inquiries and trials can be summarised in
simple terms as follows:

20.1. Every offence should ordinarily be inquired into and tried
by a court within whose local jurisdiction it was committed. This
rule is found in Section 177. The expression “local jurisdiction”
found in Section 177 is defined in Section 2(j) to mean “in
relation to a court or Magistrate, means the local area within
which the court or Magistrate may exercise all or any of its or
his powers under the Code”.

20.2. In case of uncertainty about the place in which, among the
several local areas, an offence was committed, the Court having
jurisdiction over any of such local areas may inquire into or try
such an offence.

Transfer Petition (Crl.) No. 608 of 2024 Page 38 of 87



20.3. Where an offence is committed partly in one area and
partly in another, it may be inquired into or tried by a court
having jurisdiction over any of such local areas.

20.4. In the case of a continuing offence which is committed in
more local areas than one, it may be inquired into or tried by a
court having jurisdiction over any of such local areas.

20.5. Where an offence consists of several acts done in different
local areas it may be inquired into or tried by a court having
jurisdiction over any of such local areas. (Numbers 2 to 5 are
traceable to Section 178)

20.6. Where something is an offence by reason of the act done,
as well as the consequence that ensued, then the offence may be
inquired into or tried by a court within whose local jurisdiction
either the act was done or the consequence ensued. (Section
179)

20.7. In cases where an act is an offence, by reason of its relation
to any other act which is also an offence, then the first mentioned
offence may be inquired into or tried by a court within whose
local jurisdiction either of the acts was done. (Section 180)

20.8. In certain cases such as dacoity, dacoity with murder,
escaping from custody, etc., the offence may be inquired into and
tried by a court within whose local jurisdiction either the offence
was committed or the accused person was found.

20.9. In the case of an offence of kidnapping or abduction, it may
be inquired into or tried by a court within whose local
jurisdiction the person was kidnapped or conveyed or concealed
or detained.
Transfer Petition (Crl.) No. 608 of 2024 Page 39 of 87




20.10. The offences of theft, extortion or robbery may be
inquired into or tried by a court within whose local jurisdiction,
the offence was committed or the stolen property was possessed,
received or retained.

20.11. An offence of criminal misappropriation or criminal
breach of trust may be inquired into or tried by a court within
whose local jurisdiction the offence was committed or any part
of the property was received or retained or was required to be
returned or accounted for by the accused person.

20.12. An offence which includes the possession of stolen
property, may be inquired into or tried by a court within whose
local jurisdiction the offence was committed or the stolen
property was possessed by any person, having knowledge that it
is stolen property. (Nos. 8 to 12 are found in Section 181)

20.13. An offence which includes cheating, if committed by
means of letters or telecommunication messages, may be
inquired into or tried by any court within whose local
jurisdiction such letters or messages were sent or received.

20.14. An offence of cheating and dishonestly inducing delivery
of the property may be inquired into or tried by a court within
whose local jurisdiction the property was delivered by the
person deceived or was received by the accused person.

20.15. Some offences relating to marriage such as Section 494
IPC (marrying again during the lifetime of husband or wife) and
Section 495 IPC (committing the offence under Section 494 with
concealment of former marriage) may be inquired into or tried
by a court within whose local jurisdiction the offence was
Transfer Petition (Crl.) No. 608 of 2024 Page 40 of 87



committed or the offender last resided with the spouse by the
first marriage. (Nos. 13 to 15 are found in Section 182)

20.16. An offence committed in the course of a journey or
voyage may be inquired into or tried by a court through or into
whose local jurisdiction that person or thing passed in the
course of that journey or voyage. (Section 183).

20.17. Cases falling under Section 219 (three offences of the
same kind committed within a space of twelve months whether
in respect of the same person or not), cases falling under Section
220 (commission of more offences than one, in one series of acts
committed together as to form the same transaction) and cases
falling under Section 221, (where it is doubtful what offences
have been committed), may be inquired into or tried by any court
competent to inquire into or try any of the offences. (Section
184).

21. Apart from Sections 177 to 184, which lay down in elaborate
detail, the rules relating to jurisdiction, Chapter XIII of the Code
also contains a few other sections. Section 185 empowers the
State Government to order any case or class of cases committed
for trial in any district, to be tried in any Sessions Division.
Section 186 empowers the High Court, in case where two or
more courts have taken cognizance of the same offence and a
question as to which of them should inquire into or try the
offence has arisen, to decide the district where the inquiry or
trial shall take place. Section 187 speaks of the powers of the
Magistrate, in case where a person within his local jurisdiction,
has committed an offence outside his jurisdiction, but the same
cannot be inquired into or tried within such jurisdiction.
Sections 188 and 189 deal with offences committed outside
India.
Transfer Petition (Crl.) No. 608 of 2024 Page 41 of 87




22. After laying down in such great detail, the rules relating to
territorial jurisdiction in Chapter XIII, the Code of Criminal
Procedure makes provisions in Chapter XXXV, as to the fate of
irregular proceedings. It is in that Chapter XXXV that one has
to search for an answer to the question as to what happens when
a court which has no territorial jurisdiction, inquires or tries an
offence.

23. Section 460 lists out 9 irregularities, which, if done in good
faith by the Magistrate, may not vitiate his proceedings. Section
461 lists out 17 irregularities, which if done by the Magistrate,
will make the whole proceedings void. Clause (l) of Section 461
is of significance and it reads as follows:
“461. Irregularities which vitiate proceedings.—If
any Magistrate, not being empowered by law in this
behalf, does any of the following things, namely—
(a)-(k) *
(l) tries an offender:
*
his proceedings shall be void”

24. Then comes Section 462, which saves the proceedings that
had taken place in a wrong Sessions Division or district or local
area. But this is subject to the condition that no failure of justice
has occasioned on account of the mistake. Section 462 reads as
follows:
“462. Proceedings in wrong place.—No finding,
sentence or order of any criminal court shall be set
aside merely on the ground that the inquiry, trial or
other proceedings in the course of which it was
arrived at or passed, took place in a wrong Sessions
Division, district, sub-division or other local area,
Transfer Petition (Crl.) No. 608 of 2024 Page 42 of 87



unless it appears that such error has in fact
occasioned a failure of justice.”

25. A cursory reading of Sections 461(l) and 462 gives an
impression that there is some incongruity. Under clause (l) of
Section 461 if a Magistrate not being empowered by law to try
an offender, wrongly tries him, his proceedings shall be void. A
proceeding which is void under Section 461 cannot be saved by
Section 462. The focus of clause (l) of Section 461 is on the
“offender” and not on the “offence”. If clause (l) had used the
words “tries an offence” rather than the words “tries an
offender”, the consequence might have been different.

26. It is significant to note that Section 460, which lists out nine
irregularities that would not vitiate the proceedings, uses the
word “offence” in three places, namely, clauses (b), (d) and (e).
Section 460 does not use the word “offender” even once.

27. On the contrary Section 461 uses the word “offence” only
once, namely, in clause (a), but uses the word “offender” twice,
namely, in clauses (l) and (m). Therefore, it is clear that if an
offender is tried by a Magistrate not empowered by law in that
behalf, his proceedings shall be void under Section 461. Section
462 does not make the principle contained therein to have force
notwithstanding anything contained in Section 461.

28. Section 26 of the Code divides offences into two categories,
namely, (i) offences under IPC and (ii) offences under any other
special law. Insofar as offences under IPC are concerned, clause
(a) of Section 26 states that they may be tried by (i) the High
Court or (ii) the Court of Session or (iii) any other court, by
which such offence is shown in the first Schedule to be triable.
In respect of offences under any other law, clause (b) of Section
Transfer Petition (Crl.) No. 608 of 2024 Page 43 of 87



26 states that they shall be tried by the court specifically
mentioned in such special law. In case the special law is silent
about the court by which it can be tried, then such an offence
may be tried either by the High Court or by any other court by
which such offence is shown in the First Schedule to be triable.

29. But clause (a) of Section 26 makes the provisions contained
therein, subject to the other provisions of the Code. Therefore, a
question arose before this Court in State of U.P. v. Sabir
Ali [State of U.P. v. Sabir Ali, AIR 1964 SC 1673 : (1964) 2 Cri
LJ 606] as to whether a conviction and punishment handed over
by a Magistrate of First Class for an offence under the Uttar
Pradesh Private Forest Act, 1948 were void, in the light of
Section 15(2) of the Special Act. Section 15(2) of the Uttar
Pradesh Private Forest Act made the offences under the Act
triable only by a Magistrate of Second or Third Class. Though
the entire trial in that case took place before a Magistrate of
Second Class, he was conferred with the powers of a Magistrate
of First Class, before he pronounced the judgment. This Court
held that the proceedings were void under Section 530(p) of the
Code of Criminal Procedure, 1898 (as it stood at that time). It is
relevant to note that Section 461(l) of the 1973 Code is in pari
materia with Section 530(p) of the 1898 Code.

30. What is now clause (a) of Section 26 of the 1973 Code, is
what was Section 28 of the 1898 Code. The only difference
between the two is that Section 28 of the 1898 Code referred to
the eighth column of the Second Schedule, but Section 26(a) of
the 1973 Code refers to the First Schedule. Similarly, clause (b)
of Section 26 of the 1973 Code is nothing but what was Section
29 of the 1898 Code.

Transfer Petition (Crl.) No. 608 of 2024 Page 44 of 87



31. What is significant to note from the 1898 Code and the 1973
Code is that the question of jurisdiction dealt with by Sections
28 and 29 of the 1898 Code and Section 26 of the 1973 Code, is
relatable only to the offence and not to the offender. The power
of a court to try an offence is directly governed by clauses (a)
and (b) of Section 26 of the 1973 Code, as it was governed by
Sections 28 and 29 of the 1898 Code.

32. In other words, the jurisdiction of a criminal court is
normally relatable to the offence and in some cases, to the
offender, such as cases where the offender is a juvenile (Section
27) or where the victim is a women [the proviso to clause (a) of
Section 26]. But Section 461(l) focuses on the offender and not
on the offence.


33. The saving clause contained in Section 462 of the 1973 Code
is in pari materia with Section 531 of the 1898 Code. In the light
of Section 531 of the 1898 Code, a question arose before the
Calcutta High Court in Ramnath Sardar v. Rekharani
Sardar [Ramnath Sardar v. Rekharani Sardar, 1975 SCC
OnLine Cal 168 : 1975 Cri LJ 1139] , as to the stage at which
an objection to the territorial jurisdiction of the court could be
raised and considered. In that case, the objection to the
territorial jurisdiction raised before a Magistrate in a petition
for maintenance filed by the wife against the husband, was
rejected by the Magistrate both on merits and on the basis of the
saving clause in Section 531. But the High Court held [Ramnath
Sardar v. Rekharani Sardar, 1975 SCC OnLine Cal 168 : 1975
Cri LJ 1139] that Section 531 would apply only after the
decision or finding or order is arrived at by any Magistrate or
court in a wrong jurisdiction and that if any objection to the
Transfer Petition (Crl.) No. 608 of 2024 Page 45 of 87



territorial jurisdiction is taken in any proceeding, it would be
the duty of the Magistrate to deal with the same.

34. In Raj Kumari Vijh v. Dev Raj Vijh [Raj Kumari Vijh v. Dev
Raj Vijh, (1977) 2 SCC 190 : 1977 SCC (Cri) 294 : AIR 1977 SC
1101] , which also arose out of a case filed by the wife for
maintenance against the husband, the Magistrate rejected a
prayer for deciding the question of jurisdiction before recording
the evidence. Actually the Magistrate passed an order holding
that the question of jurisdiction must await the recording of the
evidence on the whole case. Ultimately the Magistrate held that
he had jurisdiction to entertain the application. One of the
reasons why he came to the said conclusion was that in the reply
filed by the husband there was no specific denial of the wife's
allegation that the parties last resided together within his
jurisdiction. When the matter eventually reached this Court, this
Court relied upon the decision in Purushottamdas
Dalmia v. State of W.B. [Purushottamdas Dalmia v. State of
W.B., AIR 1961 SC 1589 : (1961) 2 Cri LJ 728] to point out that
there are two types of jurisdictional issues for a criminal court,
namely, (i) the jurisdiction with respect of the power of the court
to try particular kinds of offences, and (ii) its territorial
jurisdiction.

35. It was specifically held by this Court in Raj Kumari Vijh [Raj
Kumari Vijh v. Dev Raj Vijh, (1977) 2 SCC 190 : 1977 SCC (Cri)
294 : AIR 1977 SC 1101] that the question of jurisdiction with
respect to the power of the court to try particular kinds of
offences goes to the root of the matter and that any transgression
of the same would make the entire trial void. However, territorial
jurisdiction, according to this Court “is a matter of convenience,
keeping in mind the administrative point of view with respect to
the work of a particular court, the convenience of the accused
Transfer Petition (Crl.) No. 608 of 2024 Page 46 of 87



… and the convenience of the witnesses who have to appear
before the Court”. (SCC p. 194 para 7)

36. After making such a distinction between two different types
of jurisdictional issues, this Court concluded in that case, that
where a Magistrate has the power to try a particular offence, but
the controversy relates solely to his territorial jurisdiction, the
case would normally be covered by the saving clause under
Section 531 of the 1898 Code (present Section 462 of the 1973
Code).

37. From the above discussion, it is possible to take a view that
the words “tries an offence” are more appropriate than the
words “tries an offender” in Section 461(l). This is because, lack
of jurisdiction to try an offence cannot be cured by Section 462
and hence Section 461, logically, could have included the trial
of an offence by a Magistrate, not empowered by law to do so,
as one of the several items which make the proceedings void. In
contrast, the trial of an offender by a court which does not have
territorial jurisdiction, can be saved because of Section 462,
provided there is no other bar for the court to try the said
offender (such as in Section 27). But Section 461(l) makes the
proceedings of a Magistrate void, if he tried an offender, when
not empowered by law to do.

38. But be that as it may, the upshot of the above discussion is:

38.1. That the issue of jurisdiction of a court to try an “offence”
or “offender” as well as the issue of territorial jurisdiction,
depend upon facts established through evidence.

Transfer Petition (Crl.) No. 608 of 2024 Page 47 of 87



38.2. That if the issue is one of territorial jurisdiction, the same
has to be decided with respect to the various rules enunciated in
Sections 177 to 184 of the Code.

38.3. That these questions may have to be raised before the court
trying the offence and such court is bound to consider the same.

39. Having taken note of the legal position, let me now come
back to the cases on hand.

40. As seen from the pleadings, the type of jurisdictional issue,
raised in the cases on hand, is one of territorial jurisdiction, at
least as of now. The answer to this depends upon facts to be
established by evidence. The facts to be established by evidence,
may relate either to the place of commission of the offence or to
other things dealt with by Sections 177 to 184 of the Code. In
such circumstances, this Court cannot order transfer, on the
ground of lack of territorial jurisdiction, even before evidence is
marshalled. Hence, the transfer petitions are liable to be
dismissed. Accordingly, they are dismissed.

41. However, it is open to both parties to raise the issue of
territorial jurisdiction, lead evidence on questions of fact that
may fall within the purview of Sections 177 to 184 read with
Section 26 of the Code and invite a finding. With the above
observations the transfer petitions are dismissed. There will be
no order as to costs.”


33. Thus, this Court said the following:


Transfer Petition (Crl.) No. 608 of 2024 Page 48 of 87



(i) the issue of jurisdiction of a court to try an “offence” or
“offender” as well as the issue of territorial jurisdiction,
depend upon facts established through evidence;
(ii) if the issue is one of territorial jurisdiction, the same
has to be decided with respect to the various rules
enunciated in sections 177 to 184 of the Code; and

(iii) these questions may have to be raised before the court
trying the offence and such court is bound to consider
the same.

34. While jurisdiction of a civil court is determined by (i) territorial
and (ii) pecuniary limits, the jurisdiction of a criminal court is
determined by (i) the offence and/or (ii) the offender. But the
main difference between the question of jurisdiction raised in
civil cases and the question of jurisdiction arising in criminal
cases, is two-fold i.e.:
CIVIL COURT CRIMINAL COURT

The stage at which an
objection as to jurisdiction,
territorial or pecuniary, can be
raised, is regulated in civil

There is no provision in the
Criminal Procedure Code akin
to Section 21 of the Code of
Civil Procedure.
Transfer Petition (Crl.) No. 608 of 2024 Page 49 of 87



proceedings by Section 21 of
the Code of Civil Procedure,
1908.


In civil proceedings, a plaint
can be returned, under Order
VII, Rule 10, CPC, to be
presented to the proper court,
at any
stage of the proceedings


But in criminal proceedings, a
limited power is available to a
Magistrate under section 201 of
the Code, to return a
complaint. The power is limited
in the sense that:


But in criminal proceedings, a
limited power is available to a
Magistrate under section 201 of
the Code, to return a
complaint. The power is limited
in the sense that:

1. it is available before
taking cognizance, as
section 201 uses the
words “Magistrate who
is not competent to take
cognizance”
2. the power is limited
only to complaints, as
the word “complaint”,
as defined by section
Transfer Petition (Crl.) No. 608 of 2024 Page 50 of 87



2(d), does not include a
“police report”.


35. The Court looked into the following distinction:
“TRIES AN OFFENCE” VERSUS “TRIES AN OFFENDER”
UNDER SECTION 461(l) CrPC, WHICH IS MORE
APPROPRIATE?
The rules relating to territorial jurisdiction are given in Chapter XIII
in detail. However, it is in that Chapter XXXV that one has to search
for an answer to the question as to what happens when a court which
has no territorial jurisdiction, inquires or tries an offence.
A cursory reading of Section 461(l) and Section 462 gives an
impression that there is some incongruity. Under Clause (l) of
Section 461 if a Magistrate not being empowered by law to try an
offender, wrongly tries him, his proceedings shall be void.
A proceeding which is void under Section 461 cannot be saved
by Section 462

36. The focus of clause (l) of Section 461 18 is on the “offender”
and not on the “offence”. If clause (l) had used the words “tries
Transfer Petition (Crl.) No. 608 of 2024 Page 51 of 87



an offence” rather than the words “tries an offender”, the
consequence might have been different.

37. Section 460, which lists out nine irregularities that would not
vitiate the proceedings, uses the word “offence” in three places
namely clauses (b), (d) and (e). Section 460 does not use the
word “offender” even once. On the contrary Section 461 uses
the word ‘offence’ only once, namely in clause (a), but uses the
word “offender” twice namely in clauses (l) and (m).
38. Therefore, it is clear that if an offender is tried by a Magistrate
not empowered by law in that behalf, his proceedings shall be
void under Section 461. Section 462 does not make the principle
contained therein to have force notwithstanding anything
contained in Section 461.
39. Hence, the jurisdiction of a criminal Court is normally relatable
to the offence and in some cases, to the offender, such as cases
where the offender is a juvenile (section 27) or where the victim
is a women [the proviso to clause (a) of section 26]. But Section
461(l) focuses on the offender and not on the offence. The saving
clause contained in Section 462 of the Code of 1973 is in pari
materia with Section 531 of the Code of 1898.
Transfer Petition (Crl.) No. 608 of 2024 Page 52 of 87



40. Considering the aforementioned scheme of CrPC, the Court held
that the words “tries an offence” are more appropriate than the
words “tries an offender” in section 461 (l). This is because, lack
of jurisdiction to try an offence cannot be cured by section 462
and hence section 461, logically, could have included the trial of
an offence by a Magistrate, not empowered by law to do so, as
one of the several items which make the proceedings void.
41. In contrast, the trial of an offender by a court which does not
have territorial jurisdiction, can be saved because of section 462,
provided there is no other bar for the court to try the said
offender (such as in section 27). But Section 461 (l) makes the
proceedings of a Magistrate void, if he tried an offender, when
not empowered by law to do.
42. Thus, in the aforesaid case, this Court declined to transfer the
matter having noticed that the case was one of territorial
jurisdiction. In such circumstances, this Court left it open to both
the parties, i.e., the accused and the complainant to raise the
issue of territorial jurisdiction before the court concerned.
43. In the case of United States v. National City Lines , reported in
337 U.S. 78 , the U.S. district court of the southern district of
California observed thus:

Transfer Petition (Crl.) No. 608 of 2024 Page 53 of 87



“The Discretionary Power to Transfer:

There remains the question: Do the facts warrant the granting
of the motion?

A Conditions for Transfer

Before answering this question by reference to the facts, we
consider briefly the meaning of the transfer provision.
The wording of the clause is different from that of the
corresponding provision in the criminal rules. The latter calls
for a transfer "if the court is satisfied that in the interest of
justice the proceeding should be transferred." The section under
consideration provides for transfer "for the convenience of
parties and witnesses in the interest of justice” While both
sections use the identical phrase "in the interest of justice” as a
criterion, the civil transfer rule uses the phrase in juxtaposition
with the convenience requirement. But the meaning of the phrase
is the same in both instances:
“It implies conditions which assist, or are in aid of or in the
furtherance of, justice. Both call for the doing of things which
bring about the type of justice which results when law is
correctly applied and administered. They import the exercise of
discretion which considers both the interests of the defendant
and those of society. When commanded by a statute, they do not
attempt to determine, in advance, the type of judicial action to
be taken."
In the case in which the phrase just quoted occurs, I considered
the convenience of parties and witnesses as one of the criteria
in determining whether a transfer should be made. And in the
present case, I took into account the same element in considering
the application of the doctrine of forum non conveniens. In so
doing, I did not weigh the convenience of the defendants only,
Transfer Petition (Crl.) No. 608 of 2024 Page 54 of 87



but that of the Government also. The conclusion was arrived at
after a balancing of conveniences. This is of the very essence of
the judicial process in any matter which calls for the exercise of
discretion. Indeed, I wrote:

"A court of equity should aim to balance societal and individual
interest and to [41] maintain the proper equilibrium between
private rights and public weal."

743 The transfer provision which concerns us here depends on *
discretion for its application, as do the kindred provision in the
criminal cases and the doctrine of inconvenient forum.

B Should the Discretion be Exercised?

Having determined that the transfer provision is applicable to
this litigation, our next inquiry is whether the discretion should
be exercised under the facts in the case.

The factual situation did not change while the matter was before
the Supreme Court. It is the same as existed when I granted the
motion to dismiss. The affidavits filed with the prior motion have
been refiled and adopted for the purposes of the present motions.
The Government has filed no additional affidavits. But it was
agreed at the hearing that the additional facts contained in the
affidavit of Jesse R. O'Malley, one of counsel for the
Government, in opposition to the affidavit of Denis B. Sullivan,
filed in opposition to the Government's motion for an early trial
date, might be considered. The affidavit merely recites that a
transfer to the Northern District of Illinois, Eastern Division,
might result in delay because of the crowded condition of the
calendar of that court. It points to the fact that the transfer of
the criminal case had resulted in delay.
Transfer Petition (Crl.) No. 608 of 2024 Page 55 of 87




Speculations as to possible time of trial are not determinative of
the matter. Regardless of the condition of their calendars,
district courts have it within their power to advance cases when
public interest so requires. And if the need for immediate action
is brought home to the judges of the District Court of Illinois, I
am certain that they will arrange for as early a trial of this cause
as could be had in this district. In the instant case, the
Government could very readily have avoided the delay which
resulted from its direct appeal from my ruling by refiling the case
immediately in the Northern District of Illinois, Eastern
Division, especially when the defendants had stipulated that they
would not seek a dismissal if so refiled.

I do not question the Government's right to seek the alternative
of appeal in order to avoid a decision which it disapproved and
which it did not desire to become established as an unchallenged
precedent. However, in balancing the conveniences, we must
exclude situations such as delay brought on by the voluntary act
of the Government when it had another alternative.

744 I need not repeat the summary of the affidavits given in the *
two previous opinions.” Having re-examined them, and having
considered the additional affidavits and facts in the record to
which my attention has been called by both parties, I am of the
view that the convenience of the parties and witnesses require
the transfer of this case in the interest of justice.

Anticipating that such conclusion might be based on a balancing
of conveniences, counsel for the Government intimated at the
hearing that no resort could be had to such method in resolving
the conflicting contentions. I agree that when the section speaks
of the convenience "of parties and witnesses, it means that the
Transfer Petition (Crl.) No. 608 of 2024 Page 56 of 87



convenience of both sides must be examined. But I know of no
way of applying the requirement to a particular situation than
by viewing the facts from both standpoints and giving preference
to those which, in the court's opinion, preponderate to such an
extent as to make the choice in the interest of justice. Unless the
right to choose between conflicting facts or assertions exists, the
court could never determine a motion under this section on the
facts. For if the mere assertion by the Government of its own
convenience and the convenience of its witnesses were sufficient
to stay action, we would be confronted with a power to paralyze
judicial discretion, beside which the devastating effect of the
historic liberum veto ("Nie Pozwalan” "I don't permit") of the
Polish nobles in their Diet (1572-1697) would dim into
insignificance.

As I cannot so interpret the meaning of the section, I conclude
that the showing in this case warrants transfer to the Northern
District of Illinois, Eastern Division.”
(Emphasis supplied)


44. In Bhiaru Ram & Ors. v. Central Bureau of Investigation &
Ors reported in (2010) 7 SCC 799 this Court observed thus:

“7. Section 406 of the Code of Criminal Procedure empowers
this Court to transfer any case or appeal from one High Court
to another High Court or from a criminal court subordinate to
one High Court to another criminal court of equal or superior
jurisdiction subordinate to another High Court. We are
concerned about sub-section (1) of Section 406 which reads as
under:
Transfer Petition (Crl.) No. 608 of 2024 Page 57 of 87




“406. Power of Supreme Court to transfer cases and appeals.—
(1) Whenever it is made to appear to the Supreme Court that an
order under this section is expedient for the ends of justice, it
may direct that any particular case or appeal be transferred
from one High Court to another High Court or from a criminal
court subordinate to one High Court to another criminal court
of equal or superior jurisdiction subordinate to another High
Court.”

8. It is clear from the abovesaid provision that for the ends of
justice, this Court can transfer any criminal case or appeal to
any place. In order to transfer a case from one State to another
or from one place to another, there must be “reasonable
apprehension” on the part of the party to a case that justice may
not be done. Mere allegation that there is apprehension that
justice will not be done, cannot be the basis of transfer. In fact,
in the case on hand, it is not the claim of the petitioners that they
may not get fair justice at Special Court, CBI, Greater Mumbai
but they are seeking transfer mainly on the basis of convenience
stating that all of them are hailing from Rajasthan and majority
of the witnesses going to be examined are from Jaipur,
Rajasthan.

9. In a recent judgment pronounced on 23-7-2010 in D.A.V. Boys
Sr. Sec. School v. D.A.V. College Managing Committee [(2010)
8 SCC 401], this Court while considering the power of this
Court to transfer suits, appeals, etc. on the civil side under
Section 25 of the Civil Procedure Code has held that:

“Section 25 of the Code itself makes it clear that if any
application is made for transfer, after notice to the parties,
if the Court is satisfied that an order of transfer is expedient
Transfer Petition (Crl.) No. 608 of 2024 Page 58 of 87



for the ends of justice necessary direction may be issued for
transfer of any suit, appeal or other proceedings from a
High Court or other civil court in one State to another High
Court or other civil court in any other State. In order to
maintain fair trial, this Court can exercise this power and
transfer the proceedings to an appropriate court. The mere
convenience of the parties may not be enough for the
exercise of power but it must also be shown that trial in the
chosen forum will result in denial of justice. Further
illustrations are, balance of convenience or inconvenience
to the plaintiff or the defendant or witnesses and reasonable
apprehension in the mind of the litigant that he might not
get justice in the court in which suit is pending. The
abovementioned instances are only illustrative in nature. In
the interest of justice and to adherence of fair trial, this
Court exercises its discretion and order transfer in a suit or
appeal or other proceedings.”

From the above, it is clear that the abovementioned principles
have to be kept in mind while dealing with transfer petitions.

10. In the case on hand, except convenience, the petitioners have
not pressed into service any other ground for transfer. In fact,
Mr P.H. Parekh, informed this Court that the petitioners are
willing to attend the proceedings at Delhi, if the case is
transferred to Special Court, CBI, Delhi.

11. Mr. H.P. Raval, learned Additional Solicitor General, after
taking us through specific averments made in the counter-
affidavit filed on behalf of Respondents 1 and 2 (CBI), submitted
that the main accused Shri B.R. Meena is a very influential
person in the State of Rajasthan and there is strong
apprehension that due to influence of Shri B.R. Meena, there
Transfer Petition (Crl.) No. 608 of 2024 Page 59 of 87



would be no fair trial at Jaipur or any other place in the State of
Rajasthan. He also pointed out that the Court of Special Judge,
CBI at Greater Mumbai has ample jurisdiction to try this case
because various movable properties have been found in Mumbai
and the main accused, Shri B.R. Meena, was posted in Mumbai
from 2001 to the end of the check period i.e. 4-10-2005 and this
is the period during which most of the properties were allegedly
acquired by him and his family members.

12. We have already adverted to the fact that against the main
accused Shri B.R. Meena, (IRS 1977), Commissioner of Income
Tax, Income Tax Appellate Tribunal, Mumbai, a case has been
registered on 29-9-2005 under Section 13(2) read with Section
13(1)(e) of the Prevention of Corruption Act, 1988 for
possession of assets in his own name and in the name of his
family members to the extent of Rs 43,29,394 which were
disproportionate to his known sources of income and could not
be satisfactorily accounted for. It further shows that Respondent
3, during the check period i.e. 1-4-1993 to 4-10-2005, acquired
assets disproportionate to his known sources of income to the
extent of Rs 1,39,39,025.

13. The petitioners have been charge-sheeted for commission of
offences under Section 109 read with Section 193 IPC read with
Section 13(2) read with Section 13(1)(e) of the Prevention of
Corruption Act, 1988 for having actively aided and abetted
Respondents 3 to 4 by fabricating false evidence through
preparation of false agreements to sell with the object to
justify/explain the huge cash recoveries from the residential
premises of Respondent 3. It further reveals that the petitioners
entered into false transactions with Respondent 3 showing
receipt of cash amounts against alleged purchase of immovable
properties from him. The stamp papers were purchased against
Transfer Petition (Crl.) No. 608 of 2024 Page 60 of 87



(sic after) registration of case and false agreements to sell were
prepared in connivance with each other.

14. A perusal of the charge-sheet containing all these details
clearly shows that witnesses to be examined are not only from
Jaipur, Rajasthan, but also from various other places including
Mumbai. Though the petitioners may have a little
inconvenience, the mere inconvenience may not be sufficient
ground for the exercise of power of transfer but it must be shown
that the trial in the chosen forum will result in failure of justice.

15. We have already pointed out that except the plea of
inconvenience on the ground that they have to come all the way
from Rajasthan no other reason was pressed into service. Even,
the request for transfer to Delhi cannot be accepted since it
would not be beneficial either to the petitioners or to the
prosecution. In fact, the main accused, Respondents 3 and 4
have not filed any petition seeking transfer. In such
circumstances, the plea of the petitioners for transfer of the case
from the Court of Special Judge, CBI, Greater Mumbai to
Special Judge, CBI, Jaipur on the ground of inconvenience
cannot be accepted.”
(Emphasis supplied)

45. In Rajkumar Sabu v. Sabu Trade Private Limited reported in
2021 SCC OnLine SC 378 this Court observed thus:
“5. Now the petitioner wants the criminal case pending in the
Salem Court to be transferred to the Patiala House Court, New
Delhi. Two main grounds have been urged on behalf of the
petitioner in support of his plea, argued by Mr. S. Guru
Krishnakumar, learned Senior Advocate. One is that the points
Transfer Petition (Crl.) No. 608 of 2024 Page 61 of 87



involved in the criminal case are similar to the suits which are
being tried and determined by the Delhi High Court. The other
ground taken is that the proceeding in the Salem Court is being
conducted in Tamil, which the petitioner does not understand. It
has also been urged on behalf of the petitioner that it would be
more convenient for the parties to conduct the proceeding in
New Delhi as the civil suits are being heard in the Delhi High
Court only. The petitioner also complains about distance of over
2000 kilometres between Salem and petitioner's own place of
residence at Indore and alleges that there is no direct
connectivity between these two places. The authorities relied
upon by the petitioner are (i) Sri Jayendra Saraswathy
Swamigal (II), T.N. v. State of Tamil Nadu [(2005) 8 SCC 771]
and Mrudul M. Damle v. Central Bureau of Investigation, New
Delhi [(2012) 5 SCC 706]. It is also asserted on behalf of the
petitioner that the respondents have influence in Salem and he
has apprehension that he would not get impartial
enquiry/investigation/trial at Salem.

6. Mr. Gopal Sankarnarayan, learned Senior Advocate has
highlighted, in course of his submissions on behalf of the
respondent, the delay in approaching this Court seeking transfer
of the criminal case. As per his submission, proceeding was
th
registered on 5 April, 2018 and has made substantial progress.
The complaint has reached the stage of cross examination of the
complainants' witnesses by the petitioner. The transfer petition
th
was filed on 12 January, 2021. He also points out that personal
appearance of the petitioner during trial stood dispensed with
by an order of the Madras High Court. It is also his submission
that the case pending in the Salem Court has criminal elements,
which ought not to be mixed up with the civil suit. Relying on a
judgment of a Coordinate Bench in the case of Umesh Kumar
Sharma v. State of Uttarakhand [2020 SCC OnLine SC 845] and
Transfer Petition (Crl.) No. 608 of 2024 Page 62 of 87



an earlier decision of this Court in the case of Gurcharan Dass
Chadha v. State of Rajasthan [(1966) 2 SCR 678], he has argued
that to sustain allegation of lack of neutrality in trial as a ground
for transfer, credible materials will have to be brought before the
Court. His argument is that there is no such material that would
justify transfer on this ground. Certain decisions have been
referred to on behalf of the respondents on the point that civil
and criminal proceedings can go on simultaneously in relation
to similar transactions. But I do not consider it necessary to deal
with these authorities, as that point does not arise in the present
proceeding, which is a Transfer Petition.

7. I shall proceed on the basis that the suits being heard by the
Delhi High Court would have points which could overlap with
those involved in the criminal case pending in the Salem Court.
But that very fact, by itself, in my view, would not justify transfer
of the said case. Substantial progress has been made in the said
complaint before the Salem Court. So far as the subject-criminal
case is concerned, the ground of overlapping points in any event
cannot justify the petitioner's case for transfer as even if the
petition is allowed, the criminal case shall have to proceed in
the Court of Judicial Magistrate and not in the High Court
where the civil suits are being heard. Two different judicial fora
would be hearing the civil cases and the criminal case. Whether
the civil cases and the criminal case would continue together or
not is not a question which falls for determination in this
Transfer Petition. Moreover, it does not appear that earlier any
complaint was made about the proceeding being carried on at
Salem. In fact, the petitioner had applied for quashing the
complaint before the Madras High Court but at that point of
time, no proceeding was taken out for transferring the criminal
th
complaint. Moreover, on 8 June 2018, the petitioner had
appeared before the Salem Court and received copy of the
Transfer Petition (Crl.) No. 608 of 2024 Page 63 of 87



criminal complaint. This has been stated in the list of dates
forming part of the Transfer Petition. At that point of time, the
two earlier Transfer Petitions were pending. Those two petitions
th
were disposed of on 18 July 2018. The petitioner does not
appear to have had expressed their grievances on the basis of
which this petition has been filed at that point of time. Barring
claims being made by the petitioner of the respondents being
influential person in Salem, no material has been produced to
demonstrate that such perceived influence can impair a neutral
trial. These allegations, inter-alia, appear in an additional
affidavit filed on behalf of the petitioner affirmed on
th
26 February, 2021. The claims of the petitioner do not match
the level of unjust influence exerted on the defence in the case
of Sri Jayendra Saraswathy Swamigal (supra), on the basis of
which the transfer petition was allowed. In that case, this Court
found the prosecuting authorities were harassing the defence
team of lawyers and there were materials demonstrated by the
petitioner to show that the State machinery was going out of its
way in preventing the accused from defending himself. The
petitioner's case of possible tainted trial is unfounded and does
not meet the standard laid down in the cases of Gurucharan
Dass Chadha (supra) and Umesh Kumar Sharma (supra). I
cannot come to a conclusion that justice would be in peril if the
case continues in the Salem Court. I am not satisfied on the basis
of materials available that the petitioner would not get impartial
trial in the Salem Court.

8. Next, I shall turn to the question of the problem of language
faced by the petitioner. The respondents seem to be carrying on
their business from Salem. In course of hearing before me, no
question has been raised as regards territorial jurisdiction of the
Salem Court in proceeding with the case, the transfer of which
is asked for. Now, complaint is being made that the petitioner not
Transfer Petition (Crl.) No. 608 of 2024 Page 64 of 87



being able to understand Tamil language, the case ought to be
transferred to a Court in Delhi. Language was a factor
considered by this Court in the case of Sri Jayendra Saraswathy
Swamigal (supra), while selecting the Court to which the case
was to be transferred. But language was not the criteria based
on which transfer of the case was directed. I have briefly
discussed earlier the reason for which transfer of the case was
directed. The language factor weighed with this Court while
deciding the forum to which the case was to be transferred after
decision was taken to transfer the case for certain other reasons.

9. Ordinarily, if a Court has jurisdiction to hear a case, the case
ought to proceed in that Court only. The proceeding in the Salem
Court has not been questioned on the ground of lack of
jurisdiction but on the ground contemplated in Section 406 of
the 1973 Code. Jurisdiction under the aforesaid provision ought
to be sparingly used, as held in the case of Nahar Singh
Yadav v. Union of India [(2011) 1 SCC 307]. Such jurisdiction
cannot be exercised on mere apprehension of one of the parties
that justice would not be done in a given case. This was broadly
the ratio in the case of Gurcharan Dass Chadha (supra). In my
opinion if a Court hearing a case possesses the jurisdiction to
proceed with the same, solely based on the fact that one of the
parties to that case is unable to follow the language of that Court
would not warrant exercise of jurisdiction of this Court under
Section 406 of the 1973 Code. Records reveal that aid of
translator is available in the Salem Court, which could
overcome this difficulty. If required, the petitioner may take the
aid of interpreter also, as may be available.

10. The petitioner's plea for transfer is based primarily on
convenience. But convenience of one of the parties cannot be a
ground for allowing his application. Transfer of a criminal case
Transfer Petition (Crl.) No. 608 of 2024 Page 65 of 87



under Section 406 of the 1973 Code can be directed when such
transfer would be “expedient for the ends of justice”. This
expression entails factors beyond mere convenience of the
parties or one of them in conducting a case before a Court
having jurisdiction to hear the case. The parties are related, and
are essentially fighting commercial litigations filed in multiple
jurisdictions. While instituting civil suits, both the parties had
chosen fora, some of which were away from their primary places
of business, or the main places of business of the defendants. The
ratio of the decision of this Court in the case of Mrudul M.
Damle (supra) cannot apply in the factual context of this case.
In that case, a proceeding pending in the Court of Special Judge,
CBI Cases, Rohini Courts, New Delhi was directed to be
transferred to the Special Judge, CBI cases, Court of Session,
Thane. Out of 92 witnesses enlisted in the charge sheet, 88 were
from different parts of Maharashtra. That was a case which this
Court found was not “Delhi-centric”. The accused persons were
based in western part of this Country. It was because of these
reasons, the case was directed to be transferred. The
circumstances surrounding the case pending in the Salem Court
are entirely different. In the case of Rajesh
Talwar v. CBI [(2012) 4 SCC 217] it was held:—
“46. Jurisdiction of a court to conduct criminal prosecution
is based on the provisions of the Code of Criminal Procedure.
Often either the complainant or the accused have to travel
across an entire State to attend to criminal proceedings before
a jurisdictional court. In some cases to reach the venue of the
trial court, a complainant or an accused may have to travel
across several States. Likewise, witnesses too may also have
to travel long distances in order to depose before the
jurisdictional court. If the plea of inconvenience for
transferring the cases from one court to another, on the basis
of time taken to travel to the court conducting the criminal
Transfer Petition (Crl.) No. 608 of 2024 Page 66 of 87



trial is accepted, the provisions contained in the Criminal
procedure Code earmarking the courts having jurisdiction to
try cases would be rendered meaningless. Convenience or
inconvenience are inconsequential so far as the mandate of
law is concerned. The instant plea, therefore, deserves
outright rejection.”

11. For these reasons, I dismiss the present transfer petition.
Connected applications, if any, shall also stand disposed of.”
(Emphasis supplied)


46. In Nahar Singh Yadav & Anr. v. Union of India & Ors. reported
in (2011) 1 SCC 307 , this Court observed thus:
“22. It is, however, the trite law that power under Section 406
CrPC has to be construed strictly and is to be exercised
sparingly and with great circumspection. It needs little emphasis
that a prayer for transfer should be allowed only when there is
a well-substantiated apprehension that justice will not be
dispensed impartially, objectively and without any bias. In the
absence of any material demonstrating such apprehension, this
Court will not entertain application for transfer of a trial, as any
transfer of trial from one State to another implicitly reflects upon
the credibility of not only the entire State judiciary but also the
prosecuting agency, which would include the Public Prosecutors
as well.”
(Emphasis supplied)


Transfer Petition (Crl.) No. 608 of 2024 Page 67 of 87



47. It follows from the above-mentioned exposition of law that
transfer of cases under Section 406 Cr.P.C. may be allowed when
there is a reasonable apprehension backed by evidence that
justice may not be done and mere convenience or inconvenience
of the parties may not by itself be sufficient enough to pray for
transfer. 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.

48. In Amarinder Singh v. Parkash Singh Badal reported in (2009)
6 SCC 260 , while dealing with two transfer applications
preferred under Section 406 Cr.P.C. on the ground that with the
change in State Government, the trial was suffering a setback
due to the influence of the new Chief Minister as also the lack
of interest by the Public Prosecutor, P. Sathasivam, J., speaking
for a three-Judge Bench has observed thus:

“18. For a transfer of a criminal case, there must be a
reasonable apprehension on the part of the party to a case that
justice will not be done. It is one of the principles of
administration of justice that justice should not only be done but
it should be seen to be done. On the other hand, mere allegations
that there is apprehension that justice will not be done in a given
Transfer Petition (Crl.) No. 608 of 2024 Page 68 of 87



case does not suffice. In other words, the court has further to see
whether the apprehension alleged is reasonable or not. The
apprehension must not only be entertained but must appear to
the court to be a reasonable apprehension.

19. Assurance of a fair trial is the first imperative of the
dispensation of justice. The purpose of the criminal trial is to
dispense fair and impartial justice uninfluenced by extraneous
considerations. When it is shown that the public confidence in
the fairness of a trial would be seriously undermined, the
aggrieved party can seek the transfer of a case within the State
under Section 407 and anywhere in the country under Section
406 CrPC.

20. However, the apprehension of not getting a fair and
impartial inquiry or trial is required to be reasonable and not
imaginary. Free and fair trial is sine qua non of Article 21 of the
Constitution. If the criminal trial is not free and fair and if it is
biased, judicial fairness and the criminal justice system would
be at stake, shaking the confidence of the public in the system.
The apprehension must appear to the court to be a reasonable
one.”
(Emphasis supplied)

49. Thus, 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
Transfer Petition (Crl.) No. 608 of 2024 Page 69 of 87



the plea of lack of territorial jurisdiction of the court to try the
offence under Section 138 of the N.I. Act. This power has to be
exercised cautiously and in exceptional situations, where it
becomes necessary to do so to provide credibility to the trial.
Some of the broad factors which could be kept in mind while
considering an application for transfer of the trial are:

(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
Transfer Petition (Crl.) No. 608 of 2024 Page 70 of 87



(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. [See: Nahar Singh Yadav & Anr. v. Union
of India & Ors., (2011) 1 SCC 307 ]


50. The above-mentioned factors are not exhaustive in nature and
are illustrative of the requirements of a fair trial. It is clear as a
noon day that ensuring a fair trial is the predominant
consideration for a court to rule on a motion for transfer of a
case. This Court in Maneka Sanjay Gandhi v. Rani Jethmalani,
reported in (1979) 4 SCC 167 has held thus:

“ 2. Assurance of a fair trial is the first imperative of the
dispensation of justice and the central criterion for the court to
consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or easy
availability of legal services or like mini-grievances. Something
more substantial, more compelling, more imperilling, from the
point of view of public justice and its attendant environment, is
necessitous if the Court is to exercise its power of transfer. This
is the cardinal principle although the circumstances may be
myriad and vary from case to case. We have to test the
petitioner's grounds on this touchstone bearing in mind the rule
that normally the complainant has the right to choose any court
having jurisdiction and the accused cannot dictate when- the
case against him should be tried. Even so, the process of justice
Transfer Petition (Crl.) No. 608 of 2024 Page 71 of 87



should not harass the parties and from that angle the court may
weigh the circumstances. ”
(Emphasis supplied)

51. In Maneka Sanjay Gandhi (supra) , it was also held that as a
general rule, it is the complainant who has the right to choose
the forum that has jurisdiction over the subject matter and the
courts do not interfere with such a right unless circumstances
that hamper the ends of justice are brought to the notice of the
court by the other party.

52. In the context of our present discussion, it is pertinent to note
that that Section 406 of the Cr.P.C. uses the expression
“ expedient for the ends of justice ”, while empowering this Court
to transfer a criminal case. The import of the expression “ends
of justice” has been discussed by this Court in Yakub Abdul
Razak Memon v. State of Maharashtra , reported in (2013) 13
SCC 1 wherein it has been held that:
“ 1551. While dealing with such an issue, the court must not lose
sight of the fact that meaning of “ends of justice” essentially
refers to justice to all the parties. This phrase refers to the best
interest of the public within the four corners of the statute. In
fact, it means preservation of proper balance between the
Constitutional/statutory rights of an individual and rights of the
people at large to have the law enforced. The “ends of justice”
Transfer Petition (Crl.) No. 608 of 2024 Page 72 of 87



does not mean vague and indeterminate notions of justice, but
justice according to the law of the land.”
(Emphasis supplied)

53. The expression “ends of justice” has been more elaborately
elucidated in context of procedural law in the decision of this
Court in Mahadev Govind Gharge v. LAO , reported in (2011) 6
SCC 321 , wherein it was held that:
“ 29. Thus, it is an undisputed principle of law that the
procedural laws are primarily intended to achieve the ends of
justice and, normally, not to shut the doors of justice for the
parties at the very threshold. We have already noticed that there
is no indefeasible divestment of right of the cross-objector in
case of a delay and his rights to file cross-objections are
protected even at a belated stage by the discretion vested in the
courts. But at the same time, the court cannot lose sight of the
fact that the meaning of “ends of justice” essentially refers to
justice for all the parties involved in the litigation. It will be
unfair to give an interpretation to a provision to vest a party with
a right at the cost of the other, particularly, when statutory
provisions do not so specifically or even impliedly provide for
the same.
—xxx—

34. The consistent view taken by this Court is that the provisions
of a statute are normally construed to achieve the ends of justice,
advance the interest of public and to avoid multiplicity of
litigation. In Dondapati Narayana Reddy v. Duggireddy
Venkatanarayana Reddy [(2001) 8 SCC 115] this Court
expressed similar view in relation to amendment of pleadings.
The principles stated in that judgment may aptly be applied
Transfer Petition (Crl.) No. 608 of 2024 Page 73 of 87



generally in relation to the interpretation of provisions of the
Code. Strict construction of a procedural law is called for where
there is complete extinguishment of rights, as opposed to the
cases where discretion is vested in the courts to balance the
equities between the parties to meet the ends of justice which
would invite liberal construction. (…)”
(Emphasis supplied)

54. Therefore, when a complainant institutes a case in a court of his
choosing and such a court has the territorial jurisdiction to
adjudicate the matter then the transfer of such case has to be
guided by principles that would achieve the ends of justice. The
meaning of “ends of justice” essentially refers to justice for all
the parties involved in the litigation.

55. 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.

Transfer Petition (Crl.) No. 608 of 2024 Page 74 of 87



56. Additionally, since Section 142(2) of the N.I. Act also speaks of
cause of action, we must try to understand what cause of action
means. A Court gets jurisdiction over the matter if the cause of
action arises within the local limits of its jurisdiction. Cause of
action means: “the whole bundle of material facts which it is
necessary for the plaintiff to prove in order to entitle him to
succeed in the suit.” To ascertain whether the bundle of facts
give rise to the cause of action and to determine whether one or
more of those facts had occurred within the territorial
jurisdiction of the Court, the entire plaint needs to be looked into
and taken into consideration. In the decision rendered in State of
Madras v. C.P. Agencies reported in AIR 1960 SC 1309, this
Court has quoted with approval the following observations made
in Mst. Chand Kour v. Pratab Singh reported in 15 Indian
Appeals 156 :

“ Now the cause of action has no relation whatever to the defence
which may be set up by the defendant, nor does it depend upon
the character of the relief prayed for by the plaintiff. It refers
entirely to the grounds set forth in the plaint as the cause of
action, or, in other words, to the media upon which the plaintiff
asks the Court to arrive at a conclusion in his favour. ”

(Emphasis supplied)

Transfer Petition (Crl.) No. 608 of 2024 Page 75 of 87



57. This Court in State of Madhya Pradesh v. K.P. Ghiara , reported
in 1956 SCC OnLine SC 85 held that the venue of enquiry or
trial of a case is primarily to be determined by the averments
contained in the complaint or charge sheet and unless the facts
there are positively disproved, ordinarily the Court, where the
charge sheet or complaint is filed has to proceed with the matter,
except where action has to be taken under Section 202 of the
Criminal Procedure Code.

58. The main plank of the submission canvassed on behalf of the
petitioner seeking transfer needs to be now looked into.
According to the petitioner, there was no good reason for the
Bank to file the complaint under Section 138 of the N.I. Act in
Chandigarh more particularly when the entire cause of action
could be said to have arose in Coimbatore. If not in the form of
allegations, then at least in the form of a serious grievance, the
petitioner says that only with a view to harass and cause
inconvenience, the Bank lodged the complaint in Chandigarh.
The Bank says that the law permits it to file the complaint in
Chandigarh as the collection centre of the Bank is in
Chandigarh. According to the Bank, the law permits filing of
such a complaint at the place where a cheque is delivered for
Transfer Petition (Crl.) No. 608 of 2024 Page 76 of 87



collection at any branch of the Bank of the payee or holder in
due course, as the cheque is deemed to have been delivered to
the branch of the Bank in which the payee or holder in due
course, as the case may be , has an account maintained.

59. There is no challenge before us to the constitutional validity of
Section 142(2) of the Negotiable Instrument Amendment Act,
2015 on the ground that the same is ultra vires Article 14 of the
Constitution of India. There was a challenge at one point of time
to the validity of Section 142(2) of the Amendment Act, 2015
before the High Court of Madras in the case of Refex Energy
Ltd. v. Union of India reported in 2019 SCC Online Mad 9941 .
While dismissing the writ petition and holding that the
amendment cannot be said to be ultra vires , the division bench
of the High Court held as under:
“ 2. The contention of the learned Counsel for the petitioner
is that this amendment amounts to setting at naught a
judgment of the Honourable Supreme Court which is not
permissible in law. The contention of the petitioner cannot be
accepted. It is well settled right from the decision in Shri
Prithvi Cotton Mills Ltd. v. Broach Borough
Municipality reported in (1969) 2 SCC 283 : AIR 1970
Supreme Court 192 that Legislation can take away the basis
of a judgment.
Transfer Petition (Crl.) No. 608 of 2024 Page 77 of 87



3. The Honourable Supreme Court in Dashrath Rupsingh
Rathod (supra) summed up the law relating to the place of
suing as under:
“56. To sum up:
(i) An offence under Section 138 of the Negotiable
Instruments Act, 1881 is committed no sooner a cheque
drawn by the accused on an account being maintained by
him in a bank for discharge of debt/liability is returned
unpaid for insufficiency of funds or for the reason that the
amount exceeds the arrangement made with the bank.
(ii) Cognizance of any such offence is however forbidden
under Section 142 of the Act except upon a complaint in
writing made by the payee or holder of the cheque in due
course within a period of one month from the date the
cause of action accrues to such payee or holder under
clause (c) of proviso to Section 138.
(iii) The cause of action to file a complaint accrues to a
complainant/payee/holder of a cheque in due course if
(a) the dishonoured cheque is presented to the drawee bank
within a period of six months from the date of its issue.
(b) If the complainant has demanded payment of cheque
amount within thirty days of receipt of information by him
from the bank regarding the dishonour of the cheque and
(c) If the drawer has failed to pay the cheque amount
within fifteen days of receipt of such notice.
(iv) The facts constituting cause of action do not constitute
the ingredients of the offence under Section 138 of the Act.
(v) The proviso to Section 138 simply postpones/defers
institution of criminal proceedings and taking of
Transfer Petition (Crl.) No. 608 of 2024 Page 78 of 87



cognizance by the Court till such time cause of action in
terms of clause (c) of proviso accrues to the complainant.
(vi) Once the cause of action accrues to the complainant,
the jurisdiction of the Court to try the case will be
determined by reference to the place where the cheque is
dishonoured.
(vii) The general rule stipulated under Section 177 of
Cr.P.C applies to cases under Section 138 of the Negotiable
Instruments Act. Prosecution in such cases can, therefore,
be launched against the drawer of the cheque only before
the Court within whose jurisdiction the dishonour takes
place except in situations where the offence of dishonour
of the cheque punishable under Section 138 is committed
along with other offences in a single transaction within the
meaning of Section 220(1) read with Section 184 of the
Code of Criminal Procedure or is covered by the
provisions of Section 182(1) read with Sections 184 and
220 thereof.”
4. In order to resolve the concerns regarding the said
judgment, the President of India promulgated an Ordinance,
called Negotiable Instruments (Amendment) Ordinance,
2015. The said Ordinance, thereafter, became an Act, namely,
Negotiable Instruments (Amendment) Act, 2015.
Amendments were made by the Negotiable Instruments
(Amendment) Act, 2015, which read as under:
“An Act further to amend the Negotiable Instruments Act,
1881.
BE it enacted by Parliament in the Sixty-sixth Year of the
Republic of India as follows:—
Transfer Petition (Crl.) No. 608 of 2024 Page 79 of 87



1 . (1) This Act may be called the Negotiable Instruments
(Amendment) Act, 2015.
(2) It shall be deemed to have come into force on the
th
15 day of June, 2015.
2 . In the Negotiable Instruments Act, 1881 (hereinafter
referred to as the principal Act), in section 6,-
(i) in Explanation I, for clause (a), the following clause
shall be substituted, namely:—
‘(a) “a cheque in the electronic form” means a cheque
drawn in electronic form by using any computer resource
and signed in a secure system with digital signature (with
or without biometrics signature) and asymmetric crypto
system or with electronic signature, as the case may be;
(ii) after Explanation II, the following Explanation shall be
inserted, namely:—
‘Explanation III.-For the purposes of this section, the
expressions “asymmetric crypto system”, “computer
resource”, “digital signature”, “electronic form” and
“electronic signature” shall have the same meanings
respectively assigned to them in the Information
Technology Act, 2000.’.
3. In the principal Act, section 142 shall be numbered as
sub-section (1) thereof and after sub-section (1) as so
numbered, the following sub-section shall be inserted,
namely:—
“(2) The offence under section 138 shall be inquired into
and tried only by a court within whose local jurisdiction,-
(a) if the cheque is delivered for collection through an
account, the branch of the bank where the payee or holder
Transfer Petition (Crl.) No. 608 of 2024 Page 80 of 87



in due course, as the case may be, maintains the account,
is situated; or
(b) if the cheque is presented for payment by the payee or
holder in due course, otherwise through an account, the
branch of the drawee bank where the drawer maintains the
account, is situated.
Explanation.- For the purposes of clause (a), where a
cheque is delivered for collection at any branch of the bank
of the payee or holder in due course, then, the cheque shall
be deemed to have been delivered to the branch of the bank
in which the payee or holder in due course, as the case may
be, maintains the account.”.
4. In the principal Act, after section 142, the following
section shall be inserted, namely:—
“142A.(1) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 or any judgment,
decree, order or direction of any court, all cases
transferred to the court having jurisdiction under sub-
section (2) of section 142, as amended by the Negotiable
Instruments (Amendment) Ordinance, 2015, shall be
deemed to have been transferred under this Act, as if that
sub-section had been in force at all material times.
(2) Notwithstanding anything contained in sub-section (2)
of section 142 or sub-section (1), where the payee or the
holder in due course, as the case may be, has filed a
complaint against the drawer of a cheque in the court
having jurisdiction under sub-section (2) of section 142 or
the case has been transferred to that court under sub-
section (1) and such complaint is pending in that court, all
subsequent complaints arising out of section 138 against
the same drawer shall be filed before the same court
Transfer Petition (Crl.) No. 608 of 2024 Page 81 of 87



irrespective of whether those cheques were delivered for
collection or presented for payment within the territorial
jurisdiction of that court.
(3) If, on the date of the commencement of the Negotiable
Instruments (Amendment) Act, 2015, more than one
prosecution filed by the same payee or holder in due
course, as the case may be, against the same drawer of
cheques is pending before different courts, upon the said
fact having been brought to the notice of the court, such
court shall transfer the case to the court having
jurisdiction under sub-section (2) of section 142, as
amended by the Negotiable Instruments (Amendment)
Ordinance, 2015, before which the first case was filed and
is pending, as if that sub-section had been in force at all
material times.
5. (1) The Negotiable Instruments (Amendment) Second
Ordinance, 2015, is hereby repealed.
(2) Notwithstanding such repeal, anything done or any
action taken under the principal Act, as amended by the
said Ordinance, shall be deemed to have been done or
taken under the corresponding provisions of the principal
Act, as amended by this Act.”
5. By virtue of the said amendment, the entire basis of the
judgment of Dashrath Rupsingh Rathod (supra) has been
removed. The power of the Legislature to take away the basis
of a judgment by making amendments is well settled. It is trite
law that the Legislature can take away the basis of the
judgment of a judicial pronouncement by either passing a
Validating Act or passing amendments to the parent Act.
[Refer. State of Karnataka v. Karnataka Pawn Brokers
Association reported in (2018) 6 SCC 363; State of
Transfer Petition (Crl.) No. 608 of 2024 Page 82 of 87



Karnataka v. Pro Lab reported in (2015) 8 SCC 557; Shri
Prithvi Cotton Mills Ltd. v. Broach Borough
Municipality reported in (1969) 2 SCC 283 : AIR 1970
Supreme Court 192; Gujarat Ambuja Cements v. Union of
India reported in (2005) 4 SCC 214; State Bank's Staff Union
(Madras Circle) v. Union of India reported in (2005) 7 SCC
584]
6. In view of the above, there is no infirmity in the amendment.
Even otherwise, the Parliament is competent to bring out the
amendment under the Negotiable Instruments Act. The said
amendment cannot be said to be ultra vires in view of the
provisions of the Act or Part III of the Constitution of India.
The amendment cannot also be called to be manifestly
arbitrary in the absence of any materials on record.

7. Accordingly, this writ petition is dismissed. No costs.
Consequently, connected writ miscellaneous petition is also
dismissed.”


60. Thus, indubitably, Section 142 of the N.I. Act was amended and
Section 142-A was introduced with effect from 15.06.2015, to
clarify the jurisdictional issue and to address the crisis of transfer
of cases as per the ratio in Dashrath Rupsingh (supra) .

61. It is clear on a reading of Section 142(2)(a) and the Explanation
thereto that, for the purposes of clause (a), where a cheque is
delivered for collection at any branch of the bank of the payee
Transfer Petition (Crl.) No. 608 of 2024 Page 83 of 87



or holder in due course, then, the cheque shall be deemed to have
been delivered to the branch of the bank in which the payee or
holder in due course, as the case may be, maintains the account.

62. A conjoint reading of Section 142(2)(a) along with the
explanation thereof, makes the position emphatically clear 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 N.I. Act. In that view of the position of
law, the word ‘delivered’ used in Section 142(2)(a) of the N.I.
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
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payee or holder in due course, and the said place is decisive to
determine the question of jurisdiction.

63. The strong assertion on the part of the petitioner that no part of
the cause of action could be said to have arisen within
Chandigarh, is of no avail to them, more particularly when the
law itself allows the institution of a complaint in Chandigarh.
The enactment of sub-section (2)(a) of Section 142 of the N.I.
Act and the Explanation thereto allows the complainant to file a
complaint before the courts within whose jurisdiction the
collection branch of the bank falls. In the present case, while
contending that the court in Chandigarh lack the jurisdiction to
entertain the case, it is not the case of the petitioner that the
respondent Bank has no collection branch in Chandigarh.

64. The argument canvassed on behalf of the petitioner that although
the Court in Chandigarh has the territorial jurisdiction to try the
case under Section 138 of the N.I. Act yet as the Court in Delhi
also has the territorial jurisdiction to try the case, the
proceedings deserve to be transferred to the Court in Delhi to
take care of two situations for the petitioner (i) language barrier
and (ii) convenience.
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65. 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.

CONCLUSION

66. Having regard to the pleadings in the memorandum of the
transfer petition, we have reached the conclusion that no case is
made out for transfer of the proceedings in question under 406
CrPC.

67. In the result, the petition fails and is hereby dismissed. All other
connected transfer petitions are also disposed of in the aforesaid
terms.

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68. Pending applications, if any, shall stand disposed of.



………………………………J.
(J. B. PARDIWALA)



………………………………J.
(R. MAHADEVAN)
New Delhi.
th
March 6 , 2025.

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