Interim Order 5

Order Details: COPY OF ORDER
Pdf Text: 111 Ct Cases 2720/2024
Brijpal Vs. Sunil Kaushik
27.11.2024
Present: Ms. S.R. Lalomdiki, proxy counsel for the complainant.
Matter is at the stage of consideration on the point of
condonation of delay.
Previous process received as executed. Despite the same,
none has appeared on behalf of accused.
In view of the same, the application for condonation of
delay is being decided in the absence of the accused.
Heard. Record perused.
It is a settled position of law that the Court has to adopt a
liberal approach while dealing with the applications for condonation
of delay. Hypertechnical and rigid approach may lead to miscarriage
of justice. If the applicant is able to prove “sufficient cause” for the
delay then the Court ought to condone the said delay and decide the
matter on its merits.
As far as the facts of present case are concerned, there is
stated to be a delay of 55 days on the ground that due to ill health of
previous counsel, the complaint could not be filed within limitation
period.
It is a settled position of law that if the Court finds that
(Nishi Jindal)
Judicial Magistrate First Class
(NI Act)-05/NDD/RACC
27.11.2024
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there is sufficient cause for the delay amounting to however number of
days, and the complainant / applicant is able to explain the reason for
the delay then the same shall be condoned.
In the considered opinion of this Court, the present case
constitutes sufficient and bonafide reason on the part of the
complainant. Further, this Court finds that the delay was neither
willful nor intentional. Hence, the instant application is disposed of as
being allowed subject to payment of cost of Rs. 1000/- to be deposited
with DLSA, PHC, NDD and receipt be shown on NDOH.
Nothing expressed in this application shall amount to a
comment upon the merits of the case.
At this stage, counsel for complainant submits that this
complaint is filed U/s. 138 of NI Act. It is alleged in the complaint that
the accused had issued cheque in favour of complainant in discharge
of his liability. On presentation, the cheque was returned dishonured.
Thereafter, the complainant made the demand for the payment of the
cheque amount by giving the statutory notice. The accused failed to
make the payment within the prescribed period of 15 days from the
receipt of the demand notice. Complaint perused. Documents perused.
I have perused the complaint, copy of authority letter in
favour of AR of the complainant, the evidence by way of affidavit of
the AR of the complainant and the documents relied upon by the
complainant. The present complaint has been filed within the period of
(Nishi Jindal)
Judicial Magistrate First Class
(NI Act)-05/NDD/RACC
27.11.2024
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limitation and within the jurisdiction of this Court. The original
documents have been exhibited in accordance with the pre
summoning evidence by way of affidavit and the affidavit of evidence
is Ex. CW1/X.
As per the judgment of Hon'ble Supreme Court in A.C.
Narayanan Vs. State of Maharashtra and Anr. 2014 11 SCC 790 the
examination of the complainant upon oath for issuance of process is a
matter of discretion of the Magistrate. In the considered opinion of
this Court, there is no need to examine the complaint for the purpose
of issuance of process. There is sufficient material before this Court to
proceed against the accused. I hereby take cognizance of the offence
U/s. 138 of N.I. Act.
Perusal of the record shows that the accused is an individual.
The cheque also bears the signatures of the accused. Let summons be
issued to accused at the given address(es) through all permitted modes
on filing of PF within 10 days, returnable 10.02.2025.
Summons be also sent through speed post and internet
generated tracking report of summons sent through speed post be
placed on record by NDOH.
(Nishi Jindal)
Judicial Magistrate First Class
(NI Act)-05/NDD/RACC
27.11.2024
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