Order 1

Order Details: COPY OF ORDER
Pdf Text: 21
CC NI ACT 2772/2023
DIVYA UNNATI COOPERATIVE URBAN T AND C SOCIETY LTD Vs. RAHUL
(Pandav Nagar)
08.11.2024
Matter taken up through VC on CISCO Webex.
Since, the undersigned does not have digital signature, the order sheet is
signed manually.
Present: Sh. Satwant Singh, Ld. Counsel for the complainant along with AR.
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 the cheque in question bearing no. 642872 dated 30.05.2023 for Rs. 73,000/- to
the complainant in discharge of liability. On presentation, the same got dishonoured vide
return memo dated 01.06.2023, for the reason Funds Insufficient. Thereafter, demand
notice dated 22.06.2023 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.”
-- 1 of 2 --
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. 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 25.07.2025.
(Shiva Parashar)
JMFC (NI Act) Digital Court-01
East /KKD Courts 08.11.2024
-- 2 of 2 --