Whether the complainant is exempted from transfer of the case as per the judgment of Dasarth Rathod case - “145. Evidence on affidavit. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974.) 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.Crl. M.C. No.4958/2014 Page 5 of 9 (2) 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.” = There may be three situations when notice in terms of Section 251 of Cr.P.C. is served upon an accused;(i) After framing of notice in terms of Section 251 of Cr.P.C. the matter is fixed for DE as no application as envisaged in Section 145(2) of the NI Act is moved by the accused; (ii) After framing of notice in terms of Section 251 of Cr.P.C., an application under Section 145(2) of the NI Act is moved by an accused but it is yet to be allowed by a Magistrate; and (iii) After serving notice under Section 251 Cr.P.C., the application moved under Section 145(2) of the NI Act by an accused for cross-examination of the complainant, has been allowed by the Magistrate. whether the trial would be said to have commenced in all the aforesaid three situations or not. It is only in the third situation when the application under Section 145(2) of the NI Act has been allowed by the Magistrate that the trial would commence within the meaning of Section 145(2) of the NI Act. - Dashrath Rupsingh Rathod’s case (supra) the Apex Court observed that the category of complaint cases where proceedings have gone to the stage of Section 145(2) of the Act or beyond shall be deemed to have been transferred from the Court ordinarily possessing territorial jurisdiction, as clarified therein, to the Court where it is presently pending. In the present case, it is not disputed that the notice under Section 251 of Cr.P.C. was served on the petitioner on 29.05.2014 and the petitioner was granted time to move an application under Section 145(2) of NI Act. No application under Section 145(2) of NI Act was filed by the petitioner. The request to cross-examine the complainant in terms of Section 145(2) has not been allowed by the learned trial court.Thus, in my view, it cannot be said that the complaint has reached the stage of Section 145(2) of NI Act or beyond thereof. - 2015 Delhi (2015)msklawreports

Whether the complainant is exempted from transfer of the case as per the judgment of Dasarth Rathod case - “145. Evidence on affidavit. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974.) 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.Crl. M.C. No.4958/2014 Page 5 of 9 (2) 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.” = There may be three situations when notice in terms of Section 251 of Cr.P.C. is served upon an accused;(i) After framing of notice in terms of Section 251 of Cr.P.C. the matter is fixed for DE as no application as envisaged in Section 145(2) of the NI Act is moved by the accused; (ii) After framing of notice in terms of Section 251 of Cr.P.C., an application under Section 145(2) of the NI Act is moved by an accused but it is yet to be allowed by a Magistrate; and (iii) After serving notice under Section 251 Cr.P.C., the application moved under Section 145(2) of the NI Act by an accused for cross-examination of the complainant, has been allowed by the Magistrate. whether the trial would be said to have commenced in all the aforesaid three situations or not. It is only in the third situation when the application under Section 145(2) of the NI Act has been allowed by the Magistrate that the trial would commence within the meaning of Section 145(2) of the NI Act. - Dashrath Rupsingh Rathod’s case (supra) the Apex Court observed that the category of complaint cases where proceedings have gone to the stage of Section 145(2) of the Act or beyond shall be deemed to have been transferred from the Court ordinarily possessing territorial jurisdiction, as clarified therein, to the Court where it is presently pending. In the present case, it is not disputed that the notice under Section 251 of Cr.P.C. was served on the petitioner on 29.05.2014 and the petitioner was granted time to move an application under Section 145(2) of NI Act. No application under Section 145(2) of NI Act was filed by the petitioner. The request to cross-examine the complainant in terms of Section 145(2) has not been allowed by the learned trial court.Thus, in my view, it cannot be said that the complaint has reached the stage of Section 145(2) of NI Act or beyond thereof. - 2015 Delhi (2015)msklawreports

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