Order 10

Order Details: COPY OF ORDER
Pdf Text: 60 CC NI ACT / 284/2024
Sh Virasat Hussain Vs. Sh Mohd Juman Ansari
08.06.2026
At 02:00 PM
Present : Mr. Gopal Sharma and Ms. Naaz Kalia, Ld. Counsel for
complainant alongwith complainant through VC.
Ms. Shikha Soni, Ld. Proxy counsel for proposed accused
through VC.
As per proviso to section 142(b) of NI Act, if the complaint is
filed after the prescribed period of one month, congnizance may be taken
only if the complainant satisfies the Court that he has sufficient cause for
not making the complaint within such period. While considering
explanation offered by the complainant, the quantum and length of the delay
of period is not a relevant factor. In catena of cases, it has been held that
Court should take pragmatic approach in deciding the application for
condonation of delay and the Court should generally be liberal in allowing
such application. It is also a trite principle of law that procedural law is
handed of justice and substantial cause of justice should not be allowed to
be defeated on account of technicalities of law.
Applying the aforesaid principles to the present matter, the Court is of
opinion that the delay in filing the complaint is bonafide in nature and the
delay was neither intentional nor deliberate. In view of the above
discussion, the Court finds that there is sufficient cause for not filing the
present complaint within the prescribed period to time as provided under the
statute. Hence, the present application for condonation of delay is hereby
allowed.
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.
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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 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.
Accused is directed to appear physically before this Court on
NDOH voluntarily, failing which, coercive measure shall be taken.
Put up for framing of notice on 28.09.2026.
(Pranjal Gangwar)
Judicial Magistrate First Class (NI Act)-03
Central/Delhi/08.06.2026
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