Interim Order 5

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: Complaint is filed within the prescribed period of
limitation. In my considered opinion, prima facie there is sufficient
material available on record to summon the accused.
The Ld. counsel for the complainant requests that
the pre-summoning may be carried out in absence of AR of the
complainant in terms of the dictum of A. C . Narayanan judgment.
He further submits that dictum of A.C. Narayanan is also
applicable to complaints u/s 138 NI Act.
In matter of “A. C. Narayanan Vs. State of
Maharashtra & Anr.” (2014) 11 SCC 790, Full Bench of Hon'ble
Supreme Court of India has held that “...it is a matter of discretion
and the Magistrate is not bound to call upon the complainant to
remain present before the court and to examine him upon oath for
taking decision whether or not to issue process on the complaint
under Section 138 of the NI Act. For the purpose of issuing
process under Section 200 of the Code, it is open to the Magistrate
to rely upon the verification in the form of affidavit filed by the
complainant in support of the complaint under Section 138 of the
NI Act...”
Complaint, affidavit of evidence and documents
considered in light of above cited judgment. In opinion of this
Court, there is no need to examine the complainant's evidence for
purpose of issuance of process. In view of complaint, documents
produced and verification in the form of affidavit of evidence,
there are sufficient grounds for proceeding further against accused
for offence punishable under Section 138 NI Act.
Hence, accused be summoned through all modes for
offence u/s 138 Negotiable instrument Act read with section 142
NI Act on filing of PF/RC. In the event the house/office/premises
is found to be locked/refusal to accept the service/any other
contingency the process be served through affixation. PF be filed
within fifteen working days.
As per the guidelines laid down as in the case titled as
“Damodar S. Prabhu Vs. Sayed Babalal H”, AIR2010(SC) 1907”,
Ahlmad is directed to make a mention on the summons issued
against the accused (by adding separate sheet, if required) that
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