Interim Order 1

Order Details: COPY OF ORDER
Pdf Text: 41 CC NI ACT / 2456/2024
M/s Lmc Enterprises Pvt Ltd Vs. Shri Sunil Kumar Gupta
12.04.2024
The undersigned is also working as Link MM.
Fresh case has been received on assignment. It be checked
and registered.
Present:- AR for complainant with counsel.
This is a complaint filed for offence punishable
under Section 138 N. I. Act. Complaint, affidavit of evidence and
other annexed documents perused.
In matter of “A. C. Narayanan Vs. State of
Maharashtra & Anr.” (2014) 11 Supreme Court Cases 790, Full
Bench of Hon'ble Supreme Court of India has held as under:-
“29. From a conjoint reading of Sections 138, 142 and 145 of the NI 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. Once the complainant files an affidavit in support of the complaint before
issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks
fit, to call upon the complainant to remain present and to examine him as to the facts contained in the
affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion
and the Magistrate is not bound to call upon the complainant to remain present before the court and to
examine him upon oath for taking decision whether or not to issue process on the complaint under
Section 138 of the NI Act. For the purpose of issuing process under Section 200 of the Code, 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. It is only if and where the Magistrate, after considering
the complaint under Section 138 of the NI Act, documents produced in support thereof and the verification
in the form of affidavit of the complainant, is of the view that examination of the complainant or his
witness(s) is required, the Magistrate may call upon the complainant to remain present before the court
and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue
process on the complaint under Section 138 of the NI Act.”
Complaint, affidavit of evidence and documents
considered in light of above cited judgment. In opinion of this
Court, there is no need to examine the complainant's evidence for
purpose of issuance of process. In view of complaint, documents
produced and verification in the form of affidavit of evidence,
there are sufficient grounds for proceeding further against
accused person(s) for offence punishable under Section 138 N. I.
Act. I take cognizance of said offence.
Hence, accused be summoned for offence u/s 138 of
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Negotiable Instruments Act on filing of PF/RC. 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. PF be filed within seven working days.
Complainant is also liberty to serve the summon
through Whatsap and E-mail. Complainant is directed to file an
affidavit with regard to electronic service of summons as per
rule.
Matter be taken up now on 23/08/2024.
As per the guidelines laid down as in the case titled
as “Damodar S. Prabhu Vs. Sayed Babalal H”, AIR2010(SC)
1907, Ahlmad is directed to make a mention on the summons
issued against the accused (by adding separate sheet, if required)
that “accused can make an application for compounding of the
offence at the first and 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.”
(Divya Gupta)
MM-05(NI Act), (C)/THC/DELHI
12.04.2024
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