Interim Order 5

Order Details: COPY OF ORDER
Pdf Text: 48 CC NI ACT / 3637/2023
Amit Gupta Vs. Citi Mega Mart PVT LTD.
16.07.2026
Present: Sh. Pradeep Kumar, Ld. Proxy Counsel for complainant.
Ms. Nishtha Dhall, Ld. Proxy Counsel for proposed accused no.2 via
VC.
Matter is listed for arguments on application of condonation of delay.
Ld. Proxy Counsel for proposed accused no.2 submits that she has not
received the copy of application.
Ld. Counsel for complainant submits that he has supplied the copy to the
counsel via electronic mode.
Ld. Proxy Counsel for proposed accused no.2 submits that he was the
previous counsel and she has been recently engaged.
Be awaited for filing proof of service of application till 12:00 PM.
(Shraddha Tripathi)
JMFC-02 (NI Act),
East /KKD/16.07.2026
At 12:00 PM
Present: Sh. Pradeep Kumar, Ld. Proxy Counsel for complainant.
None for accused.
Proof of service of supply of copy filed.
At this stage, despite a specific passover Ld. Proxy Counsel for proposed
accused is not appearing even via VC.
Perusal of previous ordersheets reflects that the proposed accused
entered appearance through counsel on 16.12.2025 and the matter was listed for
arguments on the application. Since then, two dates have elapsed and no vakalatnama
has been filed on behalf of proposed accused. Further, Ld. Proxy Counsel for
proposed accused who appeared on first call submitted that she filed her vakalatnama.
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A similar situation was made out before the court on 16.12.2025 also. Since then, 07
months have elapsed and the accused has failed to appear even via VC and no
vakalatnmana has been filed on his behalf. He has not furnished any justifiable
ground as to why no counsel was authorized till date to file the vakalatnama. It
appears that the proposed accused no.2 is employing delyaing tactics by changing his
counsel. This case is pending for the last 03 years simply for consideration on this
application and sufficient opportunity has been given to the proposed accused to
appear but he has failed to do so.
Accordingly, no reason lies before this court to give him another
opportunity specifially when Ld. Proxy Counsel for proposed accused no.2 is not
appearing via VC.
Further, none has appeared on behalf of proposed accused no.1.
Accordingly, the right of proposed accused no.1 & 2 to be heard on the
instant application stands closed.
By way of the present application for condonation of delay, it has been
submitted on behalf of the complainant that there is a delay of 12 days in filing the
present complaint. It is further submitted that due to ill health of a relative of the
main counsel who was hospitalized, this case could not be filed on time.
Arguments heard on behalf of the complainant. Record has been
perused.
As per proviso to Section 142(b) of NI Act, in cases of complaints filed
after the prescribed period of one month, cognizance may be taken only if the
complainant satisfies the court that he had sufficient cause for not making the
complainant within such period. While considering explanation offered by the
complainant, the quantum or length of the period of delay is not a relevant factor. It
is a settled principle of law that procedural law is handmaid of justice and that
substantial cause of justice should not be allowed to be defeated by mere
technicalities of law. It has been held in a catena of cases of that the explanation
offered by the complainant for explaining the delay must be construed pragmatically
and not in a pedantic manner.
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Applying the aforesaid principles to the present case, I am of the opinion
that the delay seems to be bona-fide. In view of the above discussion, in my
considered opinion, there is sufficient cause for not filing the present complaint
within the prescribed period. Hence, the present application for condonation of delay
is hereby allowed.
Application stands disposed of accordingly.
Complaint and documents annexed with the file perused. Complaint is within
limitation and within the jurisdiction of this Court. I hereby take cognizance of the
offence punishable u/s 138 NI Act.
Arguments on summoning heard.
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.”
Similar directions have been issued in
Indian Bank Association & Ors.
vs. Union of India (2014) 5 SCC 590 and
Rajesh Agarwal vs. State (2010) 171 DLT
51.
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
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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, 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 no.1 Citi Mega Mart Pvt. Ltd. and accused no.2 Chetan be
summoned on filing of PF, through all modes including dasti. Compliance of the
same be done within 15 days from today.
Complainant is directed to place the tracking report of summons sent
through speed post on record on the next date.
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.”
Put up for appearance of accused on 19.11.2026.
(Shraddha Tripathi)
JMFC-02 (NI Act),
East /KKD/16.07.2026
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