Interim Order 1

Order Details: COPY OF ORDER
Pdf Text: 29
CC NI ACT 369/2023
GUPTA SONS ENTERPRISES Vs. SIMRAN PHARMA
(Shahdara)
06.03.2023
Matter taken up through VC on CISCO Webex.
Fresh case received. It be checked and registered.
Present: Sh. Sunny Arora, Counsel for the complainant with complainant.
1.1. All original documents were submitted by Ld counsel for the complainant.
Same has been verified today and found to be in order.
1.2. As regards the examination of the complainant under Section 200 Cr.P.C,
the Hon’ble Apex Court in its judgment titled as “ A.C. Narayanan v. State of
Maharashtra & Anr., (2014) 11 SCC 790”,has held as under:-
“From a conjoint reading of Sections 138, 142 and 145 of the N.I.
Act as well as Section 200 of the Code, it is clear that it isopen to
the Magistrate to issue process on the basis of the contents of the
complaint, documents in support thereof and the affidavit
submitted by the complainant in support of the complaint. Once
the complainant files an affidavit in support of the complaint
before issuance of the process under Section 200 of the Code, it is
thereafter open to the Magistrate, if he thinks fit, to call upon the
complainant to remain present and to examine him as to the facts
contained in the affidavit submitted by the complainant in support
of his complaint.
However, 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
N.I. 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 N.I. Act. It is only if and
where the Magistrate, after considering the complaint under
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Section 138 of the N.I. Act, documents produced in support
thereof and the verification in the form of affidavit of the
complainant, is of the view that examination of the complainant
or his witness(s) is required, the Magistrate may call upon the
complainant to remain present before the Court and examine the
complainant and/or his witness upon oath for taking a decision
whether or not to issue process on the complaint under Section
138 of the N.I. Act.”
In light of the above-mentioned judgment, it is not incumbent upon this Court
to examine the complainant on oath before issuing process.
1.3. I have carefully scrutinized the complaint, evidence by way of affidavit
and annexed documents and same are found to be in order. Perusal of complaint,
evidence by way of affidavit and annexed document shows that there is sufficient
material available on record to proceed further against proposed accused for the offence
punishable under section 138 Negotiable Instruments Act and summon the proposed
accused.
1.4. In terms of inquiry conducted under Section 202 Cr.P.C, all the statutory
requirements have been complied with. The present complaint is within the jurisdiction
of this court and is filed within the period of limitation prescribed U/s 142(1)(b) of
Negotiable instrument Act,1881.
1.5. I take cognizance of said offence.
2. Hence, issue summons against the accused to appear on filing of
P.F./R.C./Approved Courier well as through all permissible mode returnable on for
28.08.2023. If the accused could not be served in view of the provisions contained in
Section 62, 63 and 64 of Cr.P.C., then process server is directed to serve the summons by
way of affixation as per Section 65 of Cr.P.C and to file his report accordingly. If
summons are served by way of affixation, photographs of the affixed summons showing
the address/place where it is affixed be filed as well alongwith the report.
3. Service be also effected on the email, whatsapp message(s) and/or text
message of accused person(s). Proof of service/tracking report be filed and updated in
the digital file on or before the next date of hearing. The complainant can provide email
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address of accused person(s),if any for service. The service of summons through what's
app message(s) and text message(s) is permitted provided the complainant files an
affidavit to the effect that email address and/or number on which the said message(s) are
sent is/are of the accused person(s) and further subject to filing of report of service.
It is hereby directed that in case of electronic service of summons, a digital copy of
screenshot of such service be necessarily attached with report on summons.
To expedite the service of summons, dasti copy is allowed to Ld. Counsel for
complainant.
4. Directions:
4.1. Directions To complainant:
I. The complainant side is directed to file metadata form before filing of PF as
per the guidelines in SOP drafted by Hon’ble Delhi High Court.
II. To file PF and take steps within 02 weeks from today including providing
copy(ies) of complaint including the evidence affidavit of complainant
otherwise the complaint may be dismissed U/s 204(4) Cr. P.C.
III. To file tracking report of summons sent through speed post/ registered post
on record on before NDOH.
IV. Complainant is directed to be present on NDOH through Video
Conferencing.
4.2. Directions To Reader-cum-ahlmad:
Send along with summons following documents:
I. copy of this order.
II. copy of the present complaint;
III. and all other documents (including PSE of complainant, if any)
annexed with complaint.
IV. Mention the official email id and permanent video conferencing
link /meeting number of this Court on the summons.
V. Reader cum Ahlmad is further directed to send the e-copy of
summons to the Nazarat Brach for electronic service of summons.
VI. Reader cum Ahlmad is directed to make the following endorsement
on the summons in terms of the guidelines of the Hon’ble Supreme Court
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passed in the case of Damodar S. Prabhu v. Sayed Babalal H, (2010) 5 SCC
663 informing the accused that:
(a) Accused can make an application for compounding of the
offence at the first or 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.
(b) If the accused does not make an application for compounding
as aforesaid, then if an application for compounding is made
before the court at a subsequent stage, compounding can be
allowed subject to the condition that the accused will be required
to pay 10% of the cheque amount to be deposited as a condition
for compounding with the District Legal Services Authority.
VII. To preserve PF form, service report, postal/ courier envelopes and
upload scanned copies thereof on the LAYERS 2.0 as well as on mirror image
of file on cloud.
4.3. Directions to Accused:
Accused is directed to appear before this court on 28.08.2023 through video-
conferencing on the Cisco Webex application through the permanent Cisco Webex VC
Room ID nishahdara1@districtcourtdelhi.webex.com from a quiet place where facility
of audio-video calling, internet and printer is available.
Now to come up for appearance of accused, grant of bail and framing of notice
under section 251 Cr.P.C./ 145 (2) NI Act application on 28.08.2023.
(Anmol Nohria)
MM (NI ACT) Digital Court
Shahdara/KKD/Delhi
06.03.2023
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