Interim Order 3

Order Details: COPY OF ORDER
Pdf Text: CC NI ACT 800/2021
AMAZING RESEARCH LABORATORIES LIMITED Vs. SUMIT
KESARWANI PROPRIETOR OF BALAJI MEDICAL STORE
15.04.2021
Proceedings conducted through video conferencing
via Cisco Webex. It is certified that there was no issue of audio-
video connectivity.
Present : Ld. Counsel for Complainant.
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 company carrying on the
business of marketing of pharmaceutical formulations, has filed
the present complaint through its AR Mr. Ankit Sharma. It is
alleged that the proposed accused (Mr. Sumit Kesarwani,
Proprietor of ‘Balaji Medical Store’) has approached the
complainant for purchasing its products. Towards the dues, 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 of the accused, for the offence punishable under
Section 138 of NI Act 1881.
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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. It is for the aforesaid reason, no
application for condonation of delay is required in the
present matter.
Further, upon scrutiny, prima facie, there appear sufficient
grounds to proceed against the accused, the signatory to the
cheque 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
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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 a month 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 17.07.2021
(Shriya Agrawal)
MM (NI Act) Digital Court-02
PHC, New Delhi / 15.04.2021
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