Order 6

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: -1-
CC NI ACT 7023-2022
S CHAND AND COMPANY LIMITED Vs.AGARWAL SPORTS NOW KNOWN ASPRIYANK
BOOK DEPOT
12.07.2023
(Proceedings conducted through Video conferencing on Cisco Webex platform using the URL
link https://delhidistrictcourts.webex.com/meet/ninewdelhi3.
Present: Ms. Saroj Tripathi, Ld. counsel for the complainant.
Ld. counsel for the complainant has filed GST details of proposed accused along
with amended memo of parties on the e-mail ID of the court. Same be taken on record.
It is stated that proposed accused no.1 is a proprietorship firm and proposed accused
no.2 is the proprietor.
Documents perused and accepted.
Perusal of the record reflects that there is a delay in filing the present complaint. Ld.
counsel for the complainant submits that the complaint was filed within the limitation period,
however, there was a technical objection due to which a delay was caused.
At this stage, Ld. counsel for the complainant has filed e-filing history on the e-mail
ID of the court. Same be taken on record. The same reflects that the complaint was filed within the
limitation period, however, objection as to book mark and OCR was raised by the e-filing counter
and after curing the said defect, the complaint was finally approved on 07.07.2022, which is the
date of filing, as per the documents.
Perusal of the e-filing history reflects that the objection is purely technical in nature
which shall not have any bearing on the case of the complainant atleast at this stage of proceedings.
In view of the same, upon oral request, the delay in filing the present complaint is
condoned.
Ahlmad of the Court intimates that he has received the original case documents from
the complainant. He is directed to keep the same in his safe custody.
COGNIZANCE AND SUMMONING ORDER
(1) This is a complaint filed for offence punishable under Section 138 N. I. Act.
Complaint, affidavit of evidence and other annexed documents perused. I take cognizance of the
said offence.
(2) The Hon’ble Supreme Court in A. C. Narayanan Vs. State of Maharashtra & Anr.”
(2014) 11 SCC 790, has given discretion to the Magistrate to rely on the complaint,
(PADMA LANDOL)
MM (NI Act) Digital Court-03
New Delhi, PHC/Delhi/12.07.2023
-- 1 of 2 --
-2-
documents annexed and the affidavit submitted by complainant in deciding whether or not to issue
process. u/s. 200 CrPC and it is not mandatory to examine upon oath the complainant or its
witnesses in order to decide the same. Upon considering the instant complaint, documents produced
and verification in the form of affidavit of evidence, there are sufficient grounds for proceeding
further against accused no. 2 for offence punishable under Section 138 N. I. Act. Accused no. 1 a
proprietorship firm. It is a settled position of law that a proprietorship firm is not a separate legal
entity apart from its sole proprietor, hence, summons cannot be issued against the proprietorship
firm. Accused no. 2 is prima facie responsible, being the proprietor as well as the signatory to the
cheque in dispute.
(3) In terms of inquiry conducted under Section 202 CrPC, all the statutory requirements
have been complied with. The complaint is filed within the period of limitation. I am also prima
facie satisfied that the offence has been committed within the jurisdiction of this court.
Hence, issue summons against the accused No.2 only on PF/RC/Approved Courier.
Service be also effected on the email and whatsApp message(s), as provided by the complainant and
further subject to filing of report of service. Necessary particulars be filed on affidavit within 7
days. For facilitation of the same, dasti summons are permitted. The process server is directed to
serve the summons by way of affixation in terms of Sec. 65 CrPC, if premises found closed or same
could not be served personally or on any adult male member.
(4) As per the guidelines laid down in 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.”
(5) Ahlmad is also directed to mention the official email id and video conferencing link
of this Court on the summons. Complainant is directed to file PF and take steps within 07 days
including providing copy(ies) of complaint otherwise the complaint may be dismissed u/s 204(4)
Cr. P.C. The complainant is also apprised of the fact that at the time of filing 1 st PF, he is required
to mandatorily fill the Meta Deta form.
At request, put up for report/appearance of accused on 04.12.2023.
P.A. is directed to do updation of the case and upload the order as per rules.
(PADMA LANDOL)
MM (NI Act) Digital Court-03
New Delhi, PHC/Delhi/12.07.2023
-- 2 of 2 --