Order 9

Order Details: COPY OF ORDER
Pdf Text: CC NI ACT 7581/2023
AMIT AGGARWAL Vs. RADHEY SHAYAM
22.04.2026
Present : Mr. Firoz Khan, Ld. Counsel for complainant alongwith
complainant in person.
Mr. Ankush Sharma, Ld. Proxy counsel for accused.
Matter is at the stage of consideration.
Vide judgment of Hon’ble Supreme Court in Sanjabij Tari
Vs. Kishore S. Borcar & Anr. (criminal appeal no. 1755/2010) decided on
25.09.2025, it was held that there is no requirement of sending a notice to
the proposed accused at pre-cognizance stage for offence U/s 138 NI Act.
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.
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 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.
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
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there are sufficient grounds for proceeding against the accused 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 225 BNSS, 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.
Since Ld. Proxy counsel for accused is present before the
court, formal requirement of issuance of summons is hereby dispensed with.
Exemption application has been filed on behalf of the
accused. Same be taken on record.
Allowed for today only.
Accused is directed to appear physically on the NDOH,
failing which, coercive measure shall be taken.
Put up for framing of notice on 04.06.2026.
(Pranjal Gangwar)
Judicial Magistrate First Class (NI Act)-03
Central/Delhi/22.04.2026
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