Advocates:
['D K DIXIT', 'P P', '', 'KESHAV AGARWAL']

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR

BENCH JAIPUR

O R D E R

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

(Firm Tirupati Tel Ghanni Udyog Vs. State of Rajasthan & Anr.)

Date of Order :::::

28.05.2015

HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL

Mr.D.K.Dixit, for the petitioner.

Mr.Anil Yadav,Public Prosecutor for State.

Mr.Keshav Agrawal, for the respondent No.2.

Heard learned counsel for the parties.

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.

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).

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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.

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.

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

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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