Order 4

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 33 CC NI ACT 2799/2023
DIVYA UNNATI COOPERATIVE URBAN T AND C SOCIETY LTD Vs. RUMA
(Pandav Nagar)
20.12.2024
The Undersigned is working as Duty Magistrate today.
Matter taken up through VC on Cisco Webex.
Present: Sh. A.K. Singh, Ld. Counsel for the complainant along with proposed AR of
complainant.
Vide this order, I shall decide the issue of maintainability of the present complaint
case.
In brief, facts of the present case are that the proposed accused person took a loan
of Rs. 50,000/- from the complainant company. Towards the payment of the said loan, the
proposed accused person issued cheque bearing number 069867 dated 30.05.2023, drawn on
Allahabad Bank for an amount of Rs. 91,200/-. Upon presentation, the cheque got dishonored for
the reason “33-encoding/listing error” vide returning memo dated 07.06.2023. Thereafter, the
complainant issued a legal cum demand notice dated 22.06.2023 to proposed accused and no
payment was made thereafter. Hence, the present complaint.
During pre-summoning evidence, bank witness Ms. Swechha Singh from Canara
Bank was examined before the court as CW-1. CW-1 stated that the cheque-in-question was
dishonoured due to the merging of the Allahabad Bank in to Indian Bank. The cheque-in-
question was dishonoured as MICR of Allahabad Bank is changed to Indian Bank due to the
merger of Allahabad Bank in Indian Bank.
Perusal of the record reveals that the cheque in question was prima facie signed by
the proposed accused, thereafter, upon dishonor a legal cum demand notice was delivered upon
the proposed accused and the proposed accused failed to make payment within 15 days thereafter
giving rise to the cause of action in favour of the complainant to file the present case.
In this regard, reference be made the observation of Hon’ble High Court of Delhi
in Sh Premanand Prusty vs Smt Sita Devi, Crl. M.C 1566/2023:-
“15. In this regard, this Court finds merit in the contention of the learned counsel
for the complainant that even if the cheque was not encashed and had returned
unpaid for the reasons that Bank was not accepting the MICR Code, the
petitioner after receipt of legal notice could have made the payment to the
complainant or could have issued a fresh cheque towards the discharge of his
liability. The fact remains that the cheque in question, which has been
undisputedly signed by the petitioner, was presented for encashment with the
Bank by the complainant towards discharge of debt, which the complainant
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claims is reflected from the promissory notes and undertakings signed by the
petitioner, and upon its presentation, the cheque had been returned unpaid by the
Bank to the complainant. Thereafter, the petitioner had also failed to make
payment of the amount in question to the complainant after service of legal notice
and therefore, the present complaint was filed under Section 138 of NI Act.”
In addition, reference here be also made to the observations of Hon’ble High Court
of Judicature at Madras in
B. Venugopal Vs. S. Narayanan wherein it was noted: -
“5. A perusal of the complaint lodged by the respondent punishable under Section 138 of
the Negotiable Instruments Act revealed that the petitioner borrowed a sum of
Rs.16,00,000/- and in order to repay the same he had issued a cheque. However, it was
returned dishonour for the reason that Non CTS Cheque. Admittedly, even till now, the
account is very much alive. Even assuming that the case of the petitioner is true that the
alleged cheque was stolen by the respondent, the petitioner never lodged any complaint as
against the respondent. That apart, the petitioner did not take any steps to hand over the
old cheques viz, Non CTS Cheque to the concerned Bank. It would show that after expiry
of those cheques, in order to cheat the respondent, the petitioner issued Non CTS Cheque
to the respondent towards repayment of loan availed by him. That apart, the grounds
raised by the petitioner are mixed question of facts and it can be considered only during
the Trial in the Trial Court by examining the witnesses.”
In these circumstances, there appears, a prima facie case to take cognizance against
the accused person. The proposed accused is at liberty to raise issues in regard the reason for
dishonour of cheque at the stage of trial, however, sufficient material is available before the
Court to take cognizance of the present case.
It is made clear that nothing in this order shall have a bearing on the merits of the
case.
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. 069867 dated 30.05.2023 for Rs. 91,200/- to the complainant in discharge
of liability. On presentation, the same got dishonoured vide return memo dated 07.06.2023, for
the reason “33-encoding/listing error”. 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.
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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 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 06.06.2025.
(Shiva Parashar)
JMFC (NI Act) Digital Court-01
East /KKD Courts 20.12.2024
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