Order 5

Order Details: COPY OF ORDER
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CC NI ACT 362/2021 SHYAM Vs. ANWAROOL HAK
12.10.2021
Proceedings conducted through video conferencing
via Cisco Webex. It is certified that there was no issue of audio-
video connectivity.
Present: Mr. Manoj Kumar Pathy, Ld. Counsel for the
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.
Briefly put, the complainant, engaged in the business of
retail and wholesale of goods/hardware items, has filed the present
complaint. It is alleged that the proposed accused (Mr. Anwarool
Hak, sole proprietor of M/s Fancy Hardware) had approached the
Complainant (Mr. Shyam Bhatt, Proprietor of M/s Aayushi
Group) for supply of goods . Towards the dues qua the same, a
cheque had been issued in the name of the complainant, which
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 the legally
recoverable liability within the statutorily prescribed period.
Hence, the present complaint has been filed seeking prosecution
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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 and submissions of the Ld. Counsel for
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 Order dated 23.9.2021 passed by the
Hon’ble SC of India in Misc Application 665/2021 in SMW ( c)
3/2020. Further, upon scrutiny, prima facie, there appear sufficient
grounds to proceed against the accused, the signatory to the cheque
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in question, for the 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 to the accused 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 07.02.2022.
(Shriya Agrawal)
MM (NI Act) Digital Court-02
PHC, New Delhi / 12.10.2021
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