Interim Order 5

Order Details: COPY OF ORDER
Pdf Text: CC NI ACT 252/2021
KOTAK MAHINDRA Vs.VIKAS GUPTA
17.04.2021
Proceedings conducted through video conferencing
via Cisco Webex. It is certified that there was no issue of
audio-video connectivity.
The cases listed on 14.4.2021 are being taken up
with today’s causelist in view of Notification bearing number
139/ G-4/ Genl-I/ DHC dated 12.04.2021 issued by the
Hon’ble HC of Delhi.
Present: Ld. Counsel for Complainant.
The Reader has confirmed the receipt of all originals as
per the SOP issued by the Hon’ble High Court of Delhi for the
functioning of the Digital Courts.
The present complaint, the pre-summoning evidence
by way of affidavit and the exhibits therein have been perused. In
view of the ruling in AC Narayanan Vs. State of Maharashtra
[(2014) 11 SCC 809], the formal recording of the pre-
summoning evidence stands dispensed with.
Perused. Submissions heard.
Briefly put, the case of the Complainant is that it is a
Banking Company which had rendered some credit facility to
one Modinagar Paper Mills Pvt. Limited (‘The Borrower’) for
which the Proposed Accused stood as Guarantors. A cheque had
been issued by the Proposed Accused (Mr. Vikas Gupta and Mr.
Anubhav Gupta) towards the dues for the loan facility. The same
however upon presentation was returned / dishonored by the
Payee’s bank. Pursuant to the same, the complainant issued a
legal demand notice and despite service of the legal notice, the
accused did not make the payment of the said amount towards
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the legally recoverable liability within the statutorily prescribed
period. Hence, the present complaint has been filed seeking
prosecution of the accused, for the offence punishable under
Section 138 of NI Act 1881.
It is settled law, that for the complainant’s case to
qualify for summoning the accused to face trial for the offence
punishable under Section 138 of the Negotiable Instruments Act,
1881, the complainant must satisfy certain ingredients as were
succinctly reiterated in Standard Chartered Bank v, State of
Maharashtra & ors [ (2016) 6 SCC 62] in the following words:
“ 9. On a studied scrutiny of the aforesaid provision, it is quite
limpid that to constitute the criminal liability the complainant is required to
show that a cheque was issued; that it was presented in the bank in question;
that on due presentation, it was dishonoured; that, as enshrined in the
provision, requisite notice was served on the person who was sought to be
made liable for criminal liability; and that in spite of service of notice, the
person who has been arraigned as an accused did not comply with the notice
by making payment or fulfilling other obligations within the prescribed
period, that is, 15 days from the date of receipt of notice.”
Having considered the complaint, the affidavit for
evidence, accompanying annexures, the submissions of the
Counsel for the Complainant, this court is found to be having the
jurisdiction to entertain the complaint at hand, which is also
found to be also well within limitation in view of the judgment
dated 8.3.2021 passed by the Hon’ble Apex Court in In Re:
Cognizance For Extension of Limitation [ Suo Motu Writ
Petition (Civil) no. 3 of 2020.
In view of the ruling in Alka Khandu Ahvad v. Amar
Syamprasad Mishra & Anr. In Criminal Appeal bearing
number 258/2021 decided by the Hon’ble Apex Court on
8.3.2021, upon scrutiny, prima facie, there appear sufficient
grounds to proceed only against the accused Mr. Vikas Gupta, the
signatory to the cheque to which the complaint relates, for the
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offence punishable under Section 138 Negotiable Instruments
Act, 1881.
Accordingly, subject to filing of affidavit in
compliance of the directions of Hon’ble Apex Court in Damodar
S. Prabhu Vs. Sayed Babalal H [2010 (5) SCC 663], affirming
that no other complaint has been filed elsewhere pertaining to the
same dispute herein, issue summons only to the accused no.1
Mr. Vikas Gupta for appearance through Video conferencing
through the link available on website/mentioned on summon on
filing of PF/RC within two weeks alongwith meta data form,
through all permissible modes, including Whatsapp/ E-mail,.
Complainant to furnish by way of affidavit email address and
mobile details of the accused, if any, to facilitate service,
affirming the same to be registered and in use by the accused.
Reader is directed to make an endorsement in the process to the
effect, that in case an application for compounding is moved at
the first or second hearing, the court may consider passing
appropriate orders, upon satisfaction, in view of the guidelines
laid down in Damodar S. Prabhu (Ibid). The process server is
also directed that in the event of house/office/premises is found
to be locked/refused to accept the service/any other contingency
of such a nature, the process be served through affixation.
Put up for appearance of accused, consideration on bail
and further proceedings on 07.07.2021.
(Shriya Agrawal)
MM (NI Act) Digital Court-02
PHC, New Delhi / 17.04.2021
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