Interim Order 3

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CC No. 2285/23
10.11.2023
File taken up on an application for preponement of the NDOH on
behalf of the complainant.
Present: SPA holder of the complainant in person alongwith
Ld. Counsel, Mr. Rajesh Nayyar.
1. Ld. Counsel for complainant submits that the matter was
fixedfor 07.11.2023 and was inadvertently taken up on 06.11.2023.
Upon query, Reader of the court submits that though the NDOH as per
the previous order sheet was 07.11.2023, file was inadvertently listed
on 06.11.2023. In view of the same, the application for preponement
filed on behalf of the complainant stands allowed. Reader is warned to
be careful in future.
2. The matter is listed today for fresh consideration. 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….
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…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.
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 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 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 the accused Manish Goel be summoned through approved
registered courier, speed post and e-mail for 02.04.2024 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
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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 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/10.11.2023
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