Ni act case transfer after proceeding has been stage 145(2)


Dear sir,

I am a complainant in a ni act case where accused are appear get bail and gave plea. After this MM gave order to us for filing for evidence and I filed our all evidence on affidavit on dated 05/07/2014.

But after supreme court Judgement dated 01/08/2014 our court is transfer our case but some confusion ( our case stage 145(2)) is is pending.

Gujrat High Cout gave a judgement dated 01/12/2014 regarding 145(2). Hon. Judge also so confuse in his judgement. Supreme Court say two line in his judgement that “recording of evidence has commenced as envisaged in Section 145(2) and ”proceedings have gone to the stage of section 145(2) or beyond” 

Gujrat High Court judgement :- 
When the Supreme Court says the “recording of evidence has commenced as envisaged in Section 145(2)” only means that the cross examination has actually begun. If the complainant is yet to step in the box for the purpose of cross-examination by the accused then those cases according to me are covered by the judgment of the Supreme Court. To put it in other words such type of cases should be transferred. I do appreciate that if I have to consider only the interpretation of the words “proceedings have gone to the stage of section 145(2) or beyond” then probably the learned counsel appearing for the complainant may be right, but at the same time I should not ignore the first part of para-22 which makes it very clear that the recording of evidence should have actually commenced as envisaged in section 145(2). There is a fine distinction between the term “has commenced” and “have gone to the stage of section 145(2)”. But for the words “the recording of evidence has commenced” I would have probably disagreed with the learned Magistrate.
I am of the view that the learned Magistrate is right inreturning the complaints to the complainant for being filed/refilled before the competent court having jurisdiction totry the offence.
 

1st In this condition please tell what is the stage of my case.

2nd what can I do in our case because I am not in position that I go that place where drawee bank.

3rd I am alone person and what can I do?

 
Reply   
 
Advocate

1. You have to take back the original complaint from the court and have to file the same within 30 days from the date of return in the court of jurisdiction.   It will start as a fresh case.

2. You have to appoint your attorney to appear on each and every date but for evidence and cross examination, you have to appear.

3. You are lucky to take independent decision.

 

 

 

 

 

 

 

 
Reply   
 


ADVOCATE sardarsena@gmail.com

Please give full details of the Guj HC citation that is name of parties and bench.

 
Reply   
 
advocate.dma@gmail.com

Actually no other meaning can be assigned to to the order of Hon SC, and this is what I had stated in my post when the jurisdiction order of SC appeared first time on this forum.

 

The stage is actually commencement of cross examination of prosecution witness. If the cross has started then the court can further proceed, kind of deemed transfer, but if the cross has not commenced then the case must be returned to complainant for filing to proper court.

 

Why this makes sense..

 

1. The trial is summary but routinely taken as normal Summon in violation of S.143.

2. Complainant is expected to give all his evidence (along with his witness evidence) under S.200.

3. This evidence shall be treated as Examination In Chief of complainant / witness without any further examination in chief in presence of accused.

 

So  as per the law, once the charges framed and accused plea is recorded and he is taken on bail, the next stage is cross examination of prosecution under S.145(2). And thats what Hon SC meant.

 

But there are a few practical issues...

 

1. Trial courts generally take the examination in chief of complainant even after accused has appeared...kind of mere formality... Although this is not mandated.

 

2. Many trial courts summon the Banks on asking of prosecution to prove the dishonor only...again not mandated.

 

3. The more important question... Can the complainant examine any other material witness after the accused has made his presence ? For example if there are 4 witnesses listed in the witness list, then Can the court examine only 2 at the time of S.200 and decide to call the remaining 2 after the accused has made his presence ?

 

This question is still unexplored, in normal criminal law this happens almost in every trial, but under NI Act this should not be allowed unless and until there is some very strong cause for the same. Simply because it is a summary trial and there is no provision of examination in chief in presence of accused.

 

So till this complex issues is settled, the order of Hon SC may create confusion here and there, and the transfer can be safely dealt with as follows...

 

1. Stage wherein Summon order is issued to accused and he has not made his presence yet.... Transfer.

 

2. Stage when the accused has made his presence and charges framed and taken on bail only....Transfer.

 

3. Stage when after the bail of the accused, the complainant has moved for any remaining witness in the list but that witness has not appeared......Transfer

 

4. Stage when that new witness has appeared and started deposing ... I do not know, ideally transfer as this process of calling the remaining witness does not appear to be mandated. Complainant is expected to examine all his listed witness under S.200 only under this act.

 

5. The cross of prosecution started.....No transfer

 

 

 

 

 

 
Reply   
 

Dear Trivedi sir,


In my case Summon order is issued to accused and he has made his presence and charges framed. after this MM ordered to us for filling our evidence then I filed our evidence on affidavit dated 05/07/2014 before SC order. After this total proceeding is pending regarding of SC order. 


What is the stage of my case????    Transfer  or Not

 
Reply   
 
advocate.dma@gmail.com

This is procedural mistake....which as I stated, many courts are committing all over India. Courts feel that even under NI Act, Examination in chief must be in presence of accused..which is not correct.

 

You are the complainant, you are required to file your affidavit (which will be treated as Examination in Chief) at the time of examination under S.200 CrPC. Based on this the magistrate would have issued the summon to accused.. 

 

So where is the need for fresh affidavit of complainant after the accused has appeared ?  you would have surely filed the affidavit earlier..

 

Stage of your case is : Transfer.

 

But has the accused asked the court for transfer or has the court showed suo moto need of transfer ?

 
Reply   
 

Dear Sir,

1st thing --- Both accused say to court for transfer but not gave any application to court and court also showed suo moto need of transfer.

2nd thing--- in sec.200crpc I also filed complaint with evidence(photo copy) before summing. MM examine to me before summoning. after examine MM summon to accused.

Accused made his presence and charges framed. then MM ordered to us for filling our evidence (Original copy) then I filed our evidence on affidavit dated 05/07/2014 2nd time.

 
Reply   
 
advocate.dma@gmail.com

No need for accused to apply, the trial court must return the complaint to you, once it is done, please move asap to the new court within 30 days...

 
Reply   
 

dear sir 

my case is at the stage of 145(2) at delhi tis hajari court the date of ce has been given and on that particular date we appeal for the transfer of the case but judge refused kindly suggest whall shall i do?

 
Reply   
 
ADVOCATE sardarsena@gmail.com

Please give the details of the application.. and we will tell you how to achieve your objective.

 

The procedure is the complaint will be returned back to the complainant and not transfer . It has been detailed in SC order.

 

And far Mr Amar the Guj HC had stayed the order for four weeks and now find out what is the current stage.Read the operative part of the Judgment.

 

 

19. I am of the view that the learned Magistrate is right in returning the complaints to the complainant for being filed/refilled before the competent court having jurisdiction to try the offence.

(J.B.PARDIWALA, J.)

After the order is pronounced, Mr. Jadeja, the learned advocate appearing on behalf of the  prays that the interim order earlier granted by this court be continued for a period of four weeks from today to enable his client to challenge this order before the Apex Court. Having regard to the issue involved, the interim order granted earlier shall continue for a further period of four weeks from today.

(J.B.PARDIWALA, J.)

================================================================ December, 2014

 

 
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