Order 3

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 44
CC NI ACT 2526/2023
ANIL KUMAR GUPTA Vs. MOHD. RIZWAN
(Gandhi Nagar)
01.02.2025
Matter taken up through VC on Cisco Webex.
Present: Sh. Shubham Chawla, Ld. Proxy Counsel for the complainant.
Ld. Counsel for the complainant has filed e-filing history along with affidavit
of service of legal notice on the last known address of the accused. Same be taken on
record.
This is a complaint u/s 138 of N.I. Act. Entire record including the complaint
and the annexed documents perused thoroughly. It is alleged that accused has issued two
cheques in question bearing nos. 291824 and 291831 dated 12.02.2023 and 18.03.2023 for
Rs. 1,50,000/- and Rs. 8,00,000/- respectively to the complainant in discharge of liability.
On presentation, the same got dishonoured vide return memo dated 02.04.2023, for the
reason Funds Insufficient. Thereafter, demand notice dated 26.04.2023 was sent to the
accused by the complainant. Despite service/deemed service of said notice, accused has
failed to make the payment within 15 days as per provisions of the Negotiable Instruments
Act, 1881.
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. In view of the same, I take
cognizance of the said offence.
The Hon’ble Supreme Court in the decision reported as A.C. Narayanan vs.
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.”
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
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Apex 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.
Let accused be summoned on filing of PF, RC/ Speed Post/ approved Courier
service/E-mail within 07 days for NDOH.
Complainant is directed to place the tracking report of summons sent through
speed post on record 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 Vs.
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 “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.”
The Ahlmad is directed to mention the official email id and video conferencing
link of this Court on the summons.
Let the matter be put up for appearance of accused on 15.07.2025.
(Shiva Parashar)
JMFC (NI Act) Digital Court-01
East KKD Courts/01.02.2025
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