Order 2

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CC NI ACT / 1788/2024
M/s Cp Textiles Llp Through Its Ar Vs. Harish Kumar
27.02.2024
Reader of this court is on leave today.
Present : AR of complainant alongwith Ld. counsel, Mr. Paras
Khurana.
1. The matter is listed today for consideration.
2. Arguments Heard. Entire record including the complaint and the
annexed documents perused thoroughly. It is alleged that accused has
issued the cheque(s) in question to the complainant in discharge of a
legal liability. On presentation, the same got dishonoured. Thereafter,
demand notice was sent to the accused by the complainant. Thereafter,
the accused has failed to make the payment within 15 days of receipt of
the legal notice as per provisions of the Negotiable Instruments Act,
1881. Thereafter, the present complaint has been filed by the
complainant.
3. The Hon’ble Supreme Court in the decision reported as A.C.
Narayanan v. State of Maharashtra (2014) 11 SCC 790 has held as
under,
“29. From a conjoint reading of Sections 138, 142 and 145 of the N.I.
Act as well as Section 200 of the Code, it is clear that it is open to the
Magistrate to issue process on the basis of the contents of the
complaint, documents in support thereof and the affidavit submitted by
the complainant in support of the complaint….
…33.4 In the light of Section 145 of the NI Act, it is open to the
Magistrate to rely upon the verification in the form of affidavit filed by
the complainant in support of the complaint under Section 138 of the NI
Act and the Magistrate is neither mandatorily obliged to call upon the
complainant to remain present before the Court, nor to examine the
-- 1 of 3 --
complainant or his witness upon oath for taking the decision whether or
not to issue process on the complaint under Section 138 of the NI Act.”
Similar directions have been issued in Indian Bank Association
& Ors. v. Union of India (2014) 5 SCC 590 and Rajesh Agarwal v. State
(2010) 171 DLT 51.
4. In light of the aforesaid decision, there is no need to examine
the complainant before issuing process to the accused. Accordingly, on
consideration of the complaint, annexed documents and the verification
affidavit of the complainant, this Court is of the opinion that prima
facie there are sufficient grounds for proceeding only against accused
no.1 mentioned below for the commission of offence under Section
138, Negotiable Instruments Act, 1881. There is no requirement for
examination of the complainant or witnesses for purpose of issuance of
process in view of the above-mentioned directions of the Hon’ble Apex
Court and Hon’ble Delhi High Court. In terms of inquiry conducted
under Section 202 CrPC, all the statutory requirements have been
complied with. The complaint is filed within the period of limitation as
prescribed under Section 142(1)(b) of the Negotiable Instruments Act.
5. Let accused no.1 Mr. Harish Kumar, proprietor of Modern
Creations be summoned through approved registered courier, speed
post and e-mail for 23.07.2024. Complainant is directed to file PF and
take steps within 15 days. The Ahlmad is directed to issue the summons
only after ensuring that the same has been done. In case, the
complainant provides the E-mail address and the Whatsapp No. of the
accused, the Ahlmad is directed to send the e-copy of summons to the
Nazarat Branch for service through E-mail and Whatsapp. Further,
complainant is directed to file an affidavit verifying the correctness of
email ID and the Whatsapp No. of the accused. Nazarat Branch is
directed to file report regarding service of summons through e-mail and
Whatsapp before the NDOH. If the complainant wishes to serve the
accused personally on his Whatsapp number and E-Mail ID, he is
-- 2 of 3 --
directed to file an affidavit of compliance with respect to service
through e-mail as well as Whatsapp.
6. Complainant is further directed to place the tracking report of
summons sent through speed post on the next date. In the event the
house/office/premises is found to be locked/refusal to accept the
service/any other contingency the process be served through affixation
in terms of Section 65, CrPC.
7. As per the guidelines laid down as in the case titled as Damodar
S. Prabhu v. Sayed Babalal H AIR 2010 (SC) 1907, Ahlmad is directed
to make a mention on the summons issued against the accused (by
adding separate sheet, if required) that :
(a) Accused can make an application for compounding of the offence at
the first or second hearing of the case and if such an application is
made, compounding may be allowed by the court without imposing any
costs on the accused.
(b) If the accused does not make an application for compounding as
aforesaid, then if an application for compounding is made before the
court at a subsequent stage, compounding can be allowed subject to the
condition that the accused will be required to pay 10% of the cheque
amount to be deposited as a condition for compounding with the
District Legal Services Authority.
(Katyayini Sharma Kandwal)
Metropolitan Magistrate/NI Act -03
Central/Delhi//27.02.2024
-- 3 of 3 --