2016 ALL MR (Cri) JOURNAL 83
(RAJASTHAN HIGH COURT)

PRASHANT KUMAR, J.

Tirupati Tel Ghanni Udyog Vs. State of Rajasthan & Anr.

S.B. Criminal Misc. Petition No.627 of 2015

28th May, 2015.

Petitioner Counsel: Mr. D.K. DIXIT
Respondent Counsel: Mr. ANIL YADAV, Mr. KESHAV AGRAWAL

Negotiable Instruments Act (1881), S.142(2) - Transfer of case - Exemption from - Question as to whether case has reached stage of S.145(2) of NI Act - Affidavit of complainant was filed as evidence - Case was adjourned for cross-examination on several dates as time was sought on behalf of accused - Held, as complainant was always ready to be cross-examined, stage of S.145(2) was reached - Case falling under category of cases exempted from transfer.

Sub-section (1) of Section 145 of NI Act provides that notwithstanding anything contained in the Code of Criminal Procedure, the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. Thus, a new procedure has been provided under this provision enabling the complainant to give his evidence on affidavit and if such affidavit is filed it shall be treated to be evidence for the purpose of enquiry, trial or other proceeding under the Code of Criminal Procedure. On the other hand, sub-section (2) of Section 145 of the Act provides that the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. Under this provision that the trial Court has been empowered to summon and examine a person who has filed his affidavit as evidence, if an application for that purpose is filed either on behalf of the prosecution or the accused. It has been clarified by the Hon'ble Court that summoning of a person by the trial Court in terms of sub-section (2) of Section 145 of the Act would be for the purpose of cross-examination only. In the present case affidavit of the complainant as evidence was filed on 30.9.2011 and the case was adjourned for cross-examination on 31.10.2011 as time was sought on behalf of the petitioner on several other dates as fixed by the trial Court from time to time, although the complainant was present but he could not be cross-examined by one reason or the other and also by the reason that on some occasions, time was again sought on behalf of the petitioner. It is no-body's case that application was filed to summon the complainant so that he can be cross-examined. As the complainant was always ready to be cross-examined the stage of Section 145 (2) was reached in the present case.

2010(3) ALL MR 952 (S.C.) Ref. to. [Para 9,10,12]

Cases Cited:
Dashrath Roopsingh Rathore Vs. State of Maharastra, 2014 ALL MR (Cri) 3333 (S.C.)=Cri.A. No.2287/2009, Dt.1/8/2014 [Para 3,6,8]
Dashrath Roopsingh Rathore Vs. State of Maharastra, 2014 ALL SCR 3124=Cri.A. No.2287/2009, Dt.1/8/2014 [Para 3,6,8]
Radhey Shyam Garg Vs. Naresh Kumar Gupta, 2010(3) ALL MR 952 (S.C.)=2010 Cr.L.J.2819 [Para 11,12]


JUDGMENT

JUDGMENT :- Heard learned counsel for the parties.

2. The accused-petitioner has filed this Criminal Misc.Petition under Section 482 Cr.P.C. against the order dated 12.12.2014 passed by the Judicial Magistrate No.1, Gangapurcity (District Sawaimadhopur) in Complaint Criminal Case No.116/2013 whereby the learned trial Court dismissed an application filed by the petitioner with a prayer to transfer the aforesaid case to a Court having jurisdiction to try it.

3. Brief relevant facts for the disposal of this petition are that the respondent-complainant filed a complaint against the accused-petitioner for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the Act") before the trial Court and after taking of cognizance petitioner was summoned as accused. Charge for offence under Section 138 of the Act was read over to the petitioner and the respondent filed an affidavit as evidence on 30.9.2011 and the case was fixed for cross-examination of the complainant on 31.10.2011, but by one reason or the other he could not be cross-examined and ultimately on 12.12.2014 present application was filed in the light of the view expressed by the Hon'ble Supreme Court in the case of Dashrath Roopsingh Rathore Vs. State of Maharastra (Criminal Appeal No.2287/2009) : [2014 ALL MR (Cri) 3333 (S.C.) : 2014 ALL SCR 3124]. After hearing both the parties, the learned trial Court came to a conclusion that as the case has already been fixed for recording the evidence of the respondent-complainant, it is not liable to be transferred to any other Court as it falls in that category of cases which have been exempted by the Hon'ble Court from transfer. With this finding the application filed by the petitioner was dismissed. Feeling aggrieved, the accused is before this Court by way of this petition.

4. Inviting attention of the Court towards the observation made by the Hon'ble Supreme Court in the aforesaid case to the effect that only those cases in which recording of evidence has commenced as envisaged in Section 145 (2) of the Act will continue to proceed at the place where such cases are presently pending, it was submitted that in the present case the stage of Section 145 (2) has not reached as only affidavit of respondent-complainant has been filed which is under Section 145 (1) of the Act, the present case is also liable to be transferred to a competent Court, but the learned trial Court by misreading the observation made by the Hon'ble Court has wrongly dismissed the application.

5. According to the learned counsel for the petitioner sub-section (1) of Section 145 of the Act enables the complainant only and not any other person to give affidavit as evidence and in the present case also on the strength of this provision, the respondent-complainant filed his affidavit as examination-in-chief on 30.9.2011. It was also submitted that under sub-section (2) of Section 145 of the Act, trial Court has been empowered to summon any person, excluding the complainant to appear before it and to give his evidence on affidavit and as per this provision, persons entitled to give their evidence on affidavit can be divided into two categories. In the first category, the person who is entitled to give his evidence is on affidavit complainant only as provided under sub-section (1) of Section 145 of the Act and in the second category falls every other person including witness of the complainant, accused and his witness and any person whom Court desires to examine as a witness. According to the learned counsel for the petitioner as in the present case the stage of sub-Section (2) of Section 145 of the Act is yet to be reached, the application filed by the petitioner is liable to be allowed.

6. On the other hand, it was submitted on behalf of the respondent-complainant that in the present case affidavit of the complainant as evidence was filed on 30.9.2011 and the case was fixed for his cross-examination on 31.10.2011, but he could not be cross-examined by one reason or the other and mainly because time was taken by the counsel for the petitioner and in the meanwhile the case of Dashrath Roopsingh Rathore Vs. State of Maharastra, was decided by the Hon'ble Supreme Court on 1.8.2014 : [2014 ALL MR (Cri) 3333 (S.C.) : 2014 ALL SCR 3124] and taking advantage of the same the petitioner filed the present application on 12.12.2014. It was submitted that it has been observed by the Hon'ble Court that these cases, in which after appearance of the accused, recording of evidence as envisaged in Section 145 (2) of the Act has already commenced, shall continue to proceed at the place where they were filed and shall not be liable to be transferred irrespective of the view expressed by the Court in the above case. It was submitted that present case falls in the category of those cases which are not liable to be transferred as in the present case evidence commenced as soon as affidavit of the respondent-complainant was filed on 30.9.2011. It was further submitted that the stage of commencement of recording of evidence was reached as soon as charge for offence under Section 138 of the Act was read over to the accused and the affidavit of complainant as evidence was filed before the trial Court. According to the learned counsel for the respondent, sub-section (2) of Section 145 of the Act enables the trial Court to summon and examine a person who has filed an affidavit as evidence, if an application for that purpose is filed by the prosecution or the accused, but so far as the commencement of recording of evidence is concerned, it reaches as soon as case is fixed to record the evidence of the complainant and affidavit of the complainant is filed.

7. I have considered the submissions made on behalf of the respective parties and the material made available for my perusal as well as the relevant legal provisions and the case law.

8. In the case of Dashrath Roopsingh Rathore Vs. State of Maharastra (Criminal Appeal No.2287/2009), [2014 ALL MR (Cri) 3333 (S.C.) : 2014 ALL SCR 3124] decided by a bench of three Hon'ble Judges of the Hon'ble Supreme Court, the question for consideration and decision before the Court was regarding territorial jurisdiction of the Court to try a case for offence under Section 138 of the Act. After considering a large number of previous decisions and the relevant legal provisions, it has been held by the Hon'ble Court that only that Court has jurisdiction to try such an offence within whose jurisdiction the cheque in dispute is dishonoured by the Bank on which it is drawn, but at the same time it was directed that the cases where, post the summoning and apperance of the accused, the recording of evidene has commenced as envisaged in Section 145 (2) of the Act, will proceedings continue at that place. It was further clarified that the category of complainant cases where proceedings have gone to the stage of Section 145 (2) or beyond shall be deemed to have been transferred by the Hon'ble Court from the Court ordinarily possessing territorial jurisdiction to the Court where it is presently pending. Thus, Hon'ble Court exempted a particular category of cases from the applicability of the principle of law laid down by the Court. In this category only those cases are covered in which, after the summoning and appearance of the accused before the Court, recording of evidence has commenced as envisaged under sub-section (2) of Section 145 of the Act. The question before this Court for consideration and decision is whether the present case is covered in the aforesaid category and it will continue to proceed further in the Court in which it is presently pending.

9. Sub-section (1) of Section 145 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. Thus, a new procedure has been provided under this provision enabling the complainant to give his evidence on affidavit and if such affidavit is filed it shall be treated to be evidence for the purpose of enquiry, trial or other proceeding under the Code of Criminal Procedure.

10. On the other hand, sub-section (2) of Section 145 of the Act provides that the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. Under this provision that the trial Court has been empowered to summon and examine a person who has filed his affidavit as evidence, if an application for that purpose is filed either on behalf of the prosecution or the accused.

11. Sub-section (2) of Section 145 of the Act came for consideration before the Hon'ble Supreme Court in the case of Radhey Shyam Garg Vs. Naresh Kumar Gupta reported in 2010 Cr.L.J.2819 : [2010(3) ALL MR 952 (S.C.)]. Hon'ble Court in the aforesaid case observed thus:-

"Under S.145 of the Code subject to just exception may allow the complainant to give evidence by way of affidavit. Such an evidence by way of affidavit had been made admissible in evidence in any enquiry, trial or other proceedings under the Code. Whereas sub-section (1) of S.145 uses the term 'may' sub-section (2) thereof uses the term "shall". The first part of the aforementioned provision must be read with sub-section (1) of S.145. It therefore merely points out to the discretionary power of the Court conferred upon it by reason thereof. The Court however has no other option but to summon and examine any person who has given evidence on affidavit as to the facts contained therein if an application is filed either by the prosecution or the accused. Section 145 must be read reasonably. If affidavit in terms of the provisions of S.145 of the Act is to be considered to be an evidence it is difficult to comprehend as to why the Court will ask the deponent of the said affidavit to examine himself with regard to the contents thereof once over again. He may be cross-examined and upon completion of his evidence he may be re-examined. Thus the words "examine any person giving evidence on affidavit as to the facts contained therein in the event the deponent is summoned by the Court in terms of sub-section (2) of S.145 of the Act" would mean for the purpose of cross-examination. The provision seeks to attend the salutary purpose. The object of enactment of the said provision is for the purpose of expedition of the trial. The deponent cannot be summoned again under S.145 (2) for his examination-in-chief."

12. Thus, it has been clarified by the Hon'ble Court that summoning of a person by the trial Court in terms of sub-section (2) of Section 145 of the Act would be for the purpose of cross-examination only. In the light of the view expressed by the Hon'ble Supreme Court in the case of Radhey Shyam Garg Vs. Naresh Kumar Gupta, [2010(3) ALL MR 952 (S.C.)] (supra), it cannot be said that in the present case the stage of Section 145 (2) of the Act has not reached. In the present case affidavit of the complainant as evidence was filed on 30.9.2011 and the case was adjourned for cross-examination on 31.10.2011 as time was sought on behalf of the petitioner on several other dates as fixed by the trial Court from time to time, although the complainant was present but he could not be cross-examined by one reason or the other and also by the reason that on some occasions, time was again sought on behalf of the petitioner. It is no-body's case that application was filed to summon the complainant so that he can be cross-examined. I am of the view that as the complainant was always ready to be cross-examined the stage of Section 145 (2) was reached in the present case.

13. As a result of all these discussions, I do not find any illegality or perversity in the impugned order. Consequently, the petition is, hereby, dismissed. The stay application also stands dismissed.

Petition dismissed.