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

Popular posts from this blog

APEX COURT DIGEST - Jan.2017 [6]

Delhi Rent control Act sec.14 - Rent Control Case - Eviction Petition - The landlord sought the eviction of the tenant  on  the  ground  that  the tenant had sub-let the premises to his son-in-law  in  contravention  of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred  to  as ‘the Act’).  -  whether  he  was doing business along with his father-in-law or independent of him,  i.e. whether  he  was  doing  business  exclusively  behind  the  façade   of   a  partnership or as a genuine partner.  It is an  uncontroverted  fact  before  us that the landlord’s permission in writing was  not  obtained  before  the  tenant had allowed the alleged sub-tenant to occupy the shop -  the Rent Controller clearly found that the son-in-law had been put  in  possession of the shop in pursua...
Read more

Writ - praying to declare that explanation to Section 6 of the amendment Act of 39 of 2005, Explanation: for the purpose of this Section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court as unconstitutional and the same is liable to be struck down and etc; -2015 KAR(2015) msklawreports

"(i) Whether  Section 6  of the Hindu Succession Act, 1956, as amended by the Amendment Act , 2005 is prospective or retrospective in operation? (ii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born prior to 17.6.1956? (iii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005? (iv) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies only to daughters born after 9.9.2005? (v) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?"   In addressing an argument that the Explanation to  Section 6  clearly provides that partition means any partition made by execution of a deed duly registered under the  Registration Act , 1908...
Read more

Or.39, Rule 1 & 2 and Sec. 151 and sec.94 of C.P.C - Police aid when to be granted - hear both parties when resisted - to avoid dispossession of actual possessor with the help of police aid - identify the property before issuing of police aid with the help of advocate commissioner if necessary - since the defendant pleaded that before the filing of suit and after filing of the suit ,he never trespassed into the suit schedule property nor violated interim injunction order - even though no evidence of violation of injunction not filed , the lower court feels that no prejudice would be caused to the respondent when police aid is granted -2013 A.P. msklawreports

filed the I.A.No.175 of 2010 for granting police aid on the ground that the order of ad-interim injunction could not be implemented as the petitioners involved in violating it. In particular the petitioner has not filed any document to show that the injunction granted by this Court is being violated or the respondents damaged his quarry It is the case of the respondents that they did not trespass into suit schedule property before or after the injunction is granted.  What that is the case of the respondents, this Court feels that no prejudice would be caused to the respondents if the police aid is granted to implement the order of this Court. "  the Court below granted the police aid aggrieved by which the present C.R.P. has been filed However, whereas great caution is to be taken for granting ex parte ad-interim injunction equal measures are to be taken while granting police aid to enforce that order.   Under the guise of an order of ad-interim i...
Read more