Case Number: CC NI ACT/1721/2021
Parties: Seema Singh versus Khaleel
Order Number: 4
Filing Date: Wed, 06 Oct 2021
Order Date: Fri, 14 Jan 2022
Order Description: COPY OF ORDER
Status: Defence Evidence
Stage: Defence Evidence
Seema Singh Vs. Khaleel
CNR NO. DLSH020086382021
NDOH: 16.04.2022
LDOH: 14.01.2022
Matter taken up through VC on CISCO Webex on an application for early hearing being filed by the complainant.
Present:
Mr. Ankit Tandon, Ld. Counsel for complainant alongwith complainant.
File is taken up today on an application for early hearing being filed by the complainant. Heard. Allowed. Matter is taken up today itself .
Ld. Counsel for the complainant has submitted that he has filed the stamped cheque return memos and Whats App service report alongwith affidavit, in compliance of order dated 16.11.2021. Perused.
Arguments on summoning heard.
This is a complaint filed for offence punishable under Section 138 Negotiable Instruments Act, 1881. Reader cum Ahlmad of this court has informed that the original complaint alongwith original documents has been filed for the purpose of safe custody and the same has been verified by him.
I have carefully perused the Complaint, affidavit of evidence and other annexed documents. I have conducted inquiry, in terms of Section 202 of Criminal Procedure Code. Prima facie, the present case is barred by limitation. However, it is pertinent to mention herein that in Suo Motu Writ Petition (Civil) No. 3 of 2020; In Re: Cognizance for Extension of Limitation , the Hon'ble Supreme Court vide its order dated 10.01.2022 has directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded in computing the limitation period prescribed under provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 . Accordingly, I take cognizance of the offence committed under Section 138 of the Negotiable Instruments Act, 1881.
'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 is open 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 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.
Careful scrutiny of the complaint, verification in the form of affidavit of evidence and documents annexed shows that there is sufficient material on record for proceeding further against the accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
Hence, issue summons against the accused on filing of P.F./R.C./Approved Courier for 19.05.2022. The process server is directed to serve the summons by way of affixation, in terms of Section 65 of Code of Criminal Procedure, 1973, if the premises found locked or same could not be served personally or in case of refusal to accept summons. Proof of service/tracking report be placed on record, on or before the next date of hearing.
Service be also effected upon the accused through e-mail, Whats App message (s) and/or text message (s) as provided by the complainant subject to filing of report of service.
In case of service of summons through permissible electronic mode, complainant is directed to file an affidavit affirming the veracity of the e-mail ID and Whats App number of the accused. Complainant is further directed that coloured screen shot of such service, bearing date along with certificate under Section 65-B Indian Evidence Act be placed on record, on or before the next date of hearing.
Reader-cum-Ahlmad is directed to make an endorsement on the summons, in terms of the judgment of the Hon'ble Apex Court in case titled as Damodar S. Prabhu v. Sayed Babalal H, AIR 2010 SC 1907 that the 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 and if, such an application is made before the Court at a subsequent stage, compounding can be allowed subject to the condition that the accused shall deposit 10% of the cheque amount with District Legal Services Authority.
The Ahlmad is directed to mention the official e-mail ID and video conferencing link of this Court on the summons. Complainant is directed to file PF and take steps within two weeks including providing copy (ies) of complaint along with documents otherwise the complaint may be dismissed under Section 204 (4) Cr.P.C.
Put up for appearance of accused and further proceedings on 19.05.2022.
Earlier date given as 16.04.2022 stands cancelled.
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(RUBY NEERAJ KUMAR) MM(NI Act) Digital Court Shahdara/KKD/Delhi 02.02.2022
02.02.2022
Matter taken up through VC on CISCO Webex on an application
for early hearing being filed by the complainant.
Present: Mr. Ankit Tandon, Ld. Counsel for complainant alongwith
complainant.
File is taken up today on an application for early hearing
being filed by the complainant. Heard. Allowed. Matter is taken up
today itself .
Ld. Counsel for the complainant has submitted that he has
filed the stamped cheque return memos and Whats App service report
alongwith affidavit, in compliance of order dated 16.11.2021. Perused.
This is a complaint filed for offence punishable under
Section 138 Negotiable Instruments Act, 1881. Reader cum Ahlmad of
this court has informed that the original complaint alongwith original
documents has been filed for the purpose of safe custody and the same
has been verified by him.
I have carefully perused the Complaint, affidavit of
evidence and other annexed documents. I have conducted inquiry, in
terms of Section 202 of Criminal Procedure Code. Prima facie, the
present case is barred by limitation. However, it is pertinent to mention
herein that in Suo Motu Writ Petition (Civil) No. 3 of 2020; In Re:
Cognizance for Extension of Limitation, the Hon’ble Supreme Court
vide its order dated 10.01.2022 has directed that the period from
15.03.2020 till 28.02.2022 shall stand excluded in computing the
limitation period prescribed under provisos (b) and (c) of Section 138 of
the Negotiable Instruments Act, 1881. Accordingly, I take cognizance of
the offence committed under Section 138 of the Negotiable Instruments
Act, 1881.
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 is
open 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 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.
Careful scrutiny of the complaint, verification in the form
of affidavit of evidence and documents annexed shows that there is
sufficient material on record for proceeding further against the accused
for offence punishable under Section 138 of the Negotiable Instruments
Act, 1881.
Hence, issue summons against the accused on filing of
P.F./R.C./Approved Courier for 19.05.2022. The process server is
directed to serve the summons by way of affixation, in terms of Section
65 of Code of Criminal Procedure, 1973, if the premises found locked or
same could not be served personally or in case of refusal to accept
summons. Proof of service/tracking report be placed on record, on or
before the next date of hearing.
Service be also effected upon the accused through e-mail,
Whats App message (s) and/or text message (s) as provided by the
complainant subject to filing of report of service.
In case of service of summons through permissible
electronic mode, complainant is directed to file an affidavit affirming
the veracity of the e-mail ID and Whats App number of the accused.
Complainant is further directed that coloured screen shot of such
service, bearing date along with certificate under Section 65-B Indian
Evidence Act be placed on record, on or before the next date of hearing.
Reader-cum-Ahlmad is directed to make an endorsement on
the summons, in terms of the judgment of the Hon’ble Apex Court in
case titled as Damodar S. Prabhu v. Sayed Babalal H, AIR 2010 SC
1907 that the 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 and if, such an application is made
before the Court at a subsequent stage, compounding can be allowed
subject to the condition that the accused shall deposit 10% of the cheque
amount with District Legal Services Authority.
The Ahlmad is directed to mention the official e-mail ID
and video conferencing link of this Court on the summons. Complainant
is directed to file PF and take steps within two weeks including
providing copy (ies) of complaint along with documents otherwise the
complaint may be dismissed under Section 204 (4) Cr.P.C.
Put up for appearance of accused and further proceedings
on 19.05.2022.
(RUBY NEERAJ KUMAR)
MM(NI Act) Digital Court
Shahdara/KKD/Delhi
02.02.2022