Order 1

Order Details: COPY OF ORDER
Pdf Text: 51 CC NI ACT/11002/2026
DLCT020313832026
ARYAN GOYAL PROPRIETOR OF VOLGA SHOE CO Vs. PRAKASH
NAIK B N PROPRIETOR OF TUSHANTH ENTERPRISES
22.09.2026
Fresh complaint case has been received. It be checked and registered as per
rules.
Present : Mr. Sunil Kumar, Ld. Counsel for the complainant.
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 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
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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.
Let accused PRAKASH NAIK B N (PROPRIETOR OF
TUSHANTH ENTERPRISES) be summoned through approved registered
courier, speed post and e-mail for 22.03.2027. 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 directed to file an affidavit of compliance
with respect to service through e-mail as well as Whatsapp.
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.
As per the guidelines laid down as in the case titled as Damodar S.
Prabhu v. Sayed Babalal H AIR 2010 (SC) 1907 and modified in Sanjabij Tari Vs.
Kishore S Borcar 2025 LiveLaw SC 952, 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 by paying the
cheque amount at the first or second hearing of the case or before recording of his
evidence i.e. defence evidence 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 5% of the cheque amount to be deposited as a condition for
compounding with the District Legal Services Authority.
(Pranjal Gangwar)
Judicial Magistrate First Class (NI Act)-03
Central/Delhi/22.09.2026
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