The petitioner herein is the complainant in ST.3712/12 before the Judicial First Class Magistrate Court-1, Alappuzha. Pending the proceedings the accused in the case (first respondent herein), made application as CMP No.7136/2014 with prayer to return the complaint on the ground of territorial jurisdiction, in view of the decision of the Hon'ble Supreme Court in Dashrath Rupsingh Rathod v.State of Maharashtra and another 2014(3) ILR Kerala 771. The learned Magistrate heard both sides on the question of applicability of the direction of the Hon'ble Supreme Court, and found that the complaint will have to be returned. Accordingly the court below allowed the application made by the accused, and returned the complaint for presentation before the proper court. The said order dated 26.09.2014 is under challenge in this
proceeding. The learned counsel for the petitioner submitted that the complainant has already filed affidavit in lieu of examination in chief, and the accused made the said application when the case came up for cross examination of the complainant under Section 145(2) of the NI act. The learned counsel for the accused submits that just because affidavit in lieu of examination in chief is filed by the complainant it cannot be said that the case has reached the stage of 145(2) of the NI act. In the reported decision the Hon'ble Supreme Court has made it clear that in cases where the recording of evidence has commenced as meant under Section 145(2) of the NI act the proceeding will have to continue where it is, and the complaint need not be returned. The diary extract produced before this court shows that the affidavit filed by the complainant before the court below was accepted as evidence in lieu of examination in chief, and the learned Magistrate posted the case for cross examination of the complainant. It was at that juncture the accused made application. I find that the learned Magistrate returned the complaint in this case after the case reached the stage of Section 145 (2) of the NI act. Once affidavit in lieu of examination in chief is accepted by the court, trial will commence, and the case will proceed for cross examination of the complainant. The submission made by the learned counsel for the accused that the case will reach the stage of Section 145(2) of the NI act only on cross examination of the complainant, cannot be accepted. Once the affidavit is accepted by the court as evidence in lieu of examination in chief, it is commencement of recording of evidence as meant by the Hon'ble Supreme Court. I find that the complaint was wrongly returned by the court below.
In the result this Crl.M.C. is allowed. The impugned order of the court below in CMP No.7136/2014 returned to the complainant in ST 3712/2012 is set aside, and it is ordered that the said case will continue in the court below. The learned Magistrate will make earnest efforts to try and dispose of the matter at the earliest.
lmp P.UBAID, JUDGE lmp