Shree
Baidyanath Ayurved Bhawan P.L. & Ors Vs. State of Punjab & Ors. [2009]
INSC 1383 (4 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION TRANSFER PETITION
(CRIMINAL) NO.377 OF 2006 Shree Baidyanath Ayurved Bhawan Pvt. Ltd. ...
Petitioner Versus State of Punjab & Ors. ... Respondents
S.B.
Sinha, J.
1.
The present petition is filed under Section 406 of the Code of
Criminal Procedure, 1973 for transfer of multiple cases by way of
complaints/FIRs for and against the Petitioner Shree Baidyanath Ayurved Bhawan
Ltd. to the Delhi High Court or any other High Court or courts subordinate to
such High Court from the Punjab & Haryana High Court and/or Courts
subordinate thereto.
2.
Shree Baidyanath Ayurved Bhawan Pvt. Ltd. (hereinafter referred to
as `the company' for the sake of brevity) is a company registered and
incorporated under the Indian Companies Act, 1956. It
manufactures Ayurvedic medicines. For the purpose of distribution of its
products, it engages Carrying and Forwarding Agents to receive goods from it,
store and sell them to the stockists.
3.
The company appointed M/s. S. Bhatia Enterprises, Ludhiana
(Respondent No.5 herein) (for short, `the firm') of which Praveen Bhatia,
Ramkishan Bhatia, Ashwani Bhatia and Promila Bhatia are partners.
1.
The agreement between the parties incorporating the terms and
conditions of Carrying and Forwarding Agency contained an arbitration clause.
4.
Between 2000 and 2001, Respondent No.5 allegedly made fraudulent
credits amounting to Rs.4,00,000/- in the account of M/s. Dhanwantri Ayurvedic
Store, Hambram, said to be a bogus firm. However, subsequent audit reports of
the company allegedly continued to show fraudulent credit entries which were
said to be detected by Company's Account Manager. The respondents were warned
in respect thereof.
5.
On or about 18.10.2001, allegedly, one of the respondents, namely,
the Respondent No.5, along with some other persons assaulted Company's Account
Manager, namely, T.S. Thakur and made a threat on his life, and also snatched
audit reports and other documents from him. The matter was reported to the
Police Station, Kailash Chowk, Ludhiana vide FIR No.29 under Sections 406, 420,
467, 468, 471, 504, 506, 382, 323 and 120B of the Indian Penal Code. The police
filed a closure report on the premise that the accused no longer has any
interest in M/s. S. Bhatia Enterprises. However, at the instance of the
petitioner, a competent court directed the police to make investigation. No
charge-sheet in the said case is said to have been filed as yet.
6.
A report of the company dated 2.11.2001 allegedly revealed that
the respondent had embezzled the goods and sale proceeds amounting to Rs.2.36
crores. On 13.11.2001, an FIR being No.303 came to be registered at Jhansi
against the respondents. However, the said FIR was transferred from Jhansi to
Ludhiana by an order dated 29.5.2002 of the High Court of Punjab and Haryana.
7.
Soon thereafter, an FIR being No.276 was filed against the
petitioners under Sections 452, 383, 384, 323 and 342 of the Indian Penal Code
in 4 Ludhiana on a complaint being made by the respondents alleging forcible
trespass into their godown.
8.
Subsequently, the respondents filed four different petitions [CMM
No.18962 of 2003, 18958 of 2003, 14773 of 2003 and 39666 of 2003] seeking
quashing of FIR No.303. Respondents also filed CMM No.19961of 2003 seeking the
stay of arrest in any future case filed against them by the petitioners.
9.
On or about 15.5.2003, Respondents again filed CM No.21830M of
2003 asking for registration of FIR against the petitioners herein for having
secretly removed the stocks from the firm's godown.
10.
Petitioners thereafter filed CM No.23513 of 2003 under Section 482
of the Code of Criminal Procedure praying to direct the State to have the
investigation of all the cases pending between the parties to be conducted by
an independent agency outside the State of Punjab.
11.
Indisputably, the parties have filed a large number of criminal
cases against each other. The company filed as many as nine criminal cases
which are pending in different courts of Punjab and Haryana. The firm also
filed 5 six criminal cases against the company and/or its officers which are
pending in the courts of CJM, Chandigarh and several courts at Ludhiana.
12.
It is submitted by the petitioner that the present cases arise out
of or in relation to a single transaction. It is further submitted that at
present there are sixteen criminal cases filed by the Respondent against the
petitioner in various courts in the State of Punjab. In addition, the
petitioner has also filed four criminal cases against Respondents. There are
ten FIRs pending against the parties and investigation in six of the cases has
resulted in charge sheet being filed against the parties.
13.
The petitioner also prayed for transfer of all criminal cases
pending in various courts of Punjab including the High Court of Punjab and
Haryana at Chandigarh between the parties, which may not be in the knowledge of
the petitioner and hence also may not be mentioned in this transfer petition.
14.
Mr. Sunil Gupta, learned senior counsel appearing on behalf of the
appellant, would contend that as all the cases arise out of the same
transaction, the interest of justice would be sub served if all the matters are
clubbed together in order to avoid multiplicity of proceedings. The 6
proceedings in various courts would show that the company and its officers have
unfairly been treated.
15.
Mr. Bhatt, learned counsel appearing on behalf of the respondents,
on the other hand, would urge that for transfer of a criminal case, there must
be a reasonable apprehension on the part of a party to a case that justice
would not be done which the petitioners have failed to do.
16.
Some of the cases, namely, cases arising out of FIR Nos.29, 276
and 303 having been transferred from Ludhiana and Jhansi to the Court of
Chandigarh, it would, in our opinion, be inappropriate to transfer all criminal
cases to Jhansi.
Indisputably,
at the time of filing of the transfer application, in some of the matters
investigations were pending. Some of the criminal cases have been filed in the
Ludhiana Courts by the company itself. Indisputably, it has an office at Ludhiana.
17.
Although Section 406 of the Code of Criminal Procedure empowers
this Court to transfer a criminal case from one Court situated in one State to
another situated in another State but indisputably the convenience of the 7
parties including the witnesses to be produced at the trial is a relevant
consideration there for. In Abdul Nazar Madani v. State of Tamil Nadu &
Anr. [(2000) 6 SCC 204], this Court has categorically held that before an order
of transfer is effected, the convenience not only of the petitioner but also
prosecution, other accused and witnesses including the larger interest of the
society should also be taken into consideration.
18.
It is true that some apprehensions have been expressed that
justice may not be done to the company but keeping in view the facts and
circumstances of this case, we are of the opinion that its apprehension does
not appear to be a reasonable one. We have no doubt in our mind that all the
Courts concerned would act impartially and the Company and its Directors and
Officers who are facing trial before the courts concerned would be dealt with
very fairly.
19.
We would, however, request the District Judges of Chandigarh and
Ludhiana to consider the desirability of transferring all the criminal matters
(as far as practicable and legally permissible) to one court so as to enable
them to be disposed of one after the other. We are, furthermore, of the 8
opinion that if and when applications for dispensation of personal appearance
are filed by the accused, the same shall be considered by the courts concerned
on their own merits.
20.
The transfer petition, therefore, is dismissed with the aforementioned
directions/observations.
.....................................J. [S.B. Sinha]
.....................................J. [Cyriac Joseph]
New Delhi;
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