IMPORTANT POINT
Leading of evidence at pre-summoning stage either by way of affidavit or by oral statement cannot be treated as commencement of recording of evidence under Sec.145(2) of N.I. Act

U. Durga Prasad Rao, J.—In this petition filed under Section 482 Cr.P.C., the petitioners/A.1 and A.2 seek to quash the order dated 17.10.2014 in Crl.M.P.No.1725 of 2014 in C.C.No.84 of 2013 passed by learned III Special Magistrate, Hyderabad, whereunder the learned Judge declined to return the complaint to the complainant to present the case before an appropriate Court having territorial jurisdiction in Vijayawada City.

2. The factual matrix of the case is thus:

a. The complainant originally filed C.C.No.110 of 2005 on 18.05.2005 under Sec.138 of N.I.Act against accused before Judicial Magistrate of First Class, Gurgaon. The case was transferred from Gurgaon to the Court at Hyderabad and renumbered as C.C.No.135/2008 before XIV Additional Chief Metropolitan Magistrate, Hyderabad. The petitioners/A.1 and A.2 appeared before XIV Additional Chief Metropolitan Magistrate on 21.02.2008. Then A.3 appeared on 13.03.2008. When the case was pending for the appearance of A.4 to A.7, it was transferred to XIII Special Magistrate Court, Hyderabad. A.3 to A.5 died on 08.08.2013. A.2, A.6 and A.7 were present. At this stage, the case was transferred from XIII Special Magistrate Court, Hyderabad to III Special Magistrate, Hyderabad and renumbered as C.C.No.84 of 2013. A.1, A.2 and A.6 were examined under Sec.251 Cr.P.C on 09.07.2014 for the offence under Sec.138 of N.I. Act and the accused pleaded not guilty and claimed to be tried.

b. When the case was posted for trial, petitioners/A.1 and A.2 filed Crl.M.P.No.1725 of 2014 seeking for return of complaint to the complainant for presentation before proper Court at Vijayawada City in view of the ruling given by Apex Court in the case of Dashrath Rupsingh Rathod vs. State of Maharashtra and another . Their case was that the cheques involved in this case were drawn on Union Bank of India, Vijayawada and issued by the accused to complainant and they were presented at Gurgaon for collection of the cheques and subsequently the cheques were bounced for the reason payment stopped by the drawer and in view of the decision in Dashrath Rupsingh Rathods case(1 supra), the Court in whose jurisdiction the cheque was bounced alone will have the power to try the case and hence the case is to be returned to the complainant. The trial Court dismissed the application on two grounds:

i. Firstly on the ground that though in Dashrath Rupsingh Rathods case(1 supra) the Apex Court held that the Court within whose jurisdiction the cheque was bounced will alone have jurisdiction to try the offence under Sec.138 of N.I. Act, still depending upon the stage of the case Apex Court exempted certain pending cases from being returned to the complainant. According to the said ruling, if post the summoning and appearance of the accused, the recording of evidence as envisaged in Sec.145(2) of N.I.Act has commenced, the proceedings will continue in that Court and the case need not be returned to the complainant. Then the trial Court further observed that in the instant case recording of evidence shall be deemed to be commenced in view of another judgment of Apex Court rendered in Indian Bank Association and others vs. Union of India (UOI) and another . As per Para 16 coupled with direction No.4 of the said judgment, the complainant is not required to examine himself twice i.e, once after filing the complaint and once after summoning of the accused and the affidavit and documents filed by him along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e, pre-summoning stage and post-summoning stage. Subsequently when the accused appeared, the Court can examine him under Sec.251 Cr.P.C and post the case for defence evidence unless he files an application under Sec.145(2) N.I.Act for recalling of complainant and his witnesses for cross-examination. The trial Court observed that in view of this judgment, by the time accused appeared and examined under Sec.251 Cr.P.C, the