AJAY MARWAH Vs. STATE

JUDGEMENT

(1.) Vide the present petition, the petitioner/ accused prays for setting aside the impugned judgment and order dated 04.09.2019 passed by the learned ASJ (North-West), Rohini Courts, Delhi, in C.A. No. 56/19, titled as 'Ajay Marwah Versus B.D. Jain Trading Company' and further prays for setting aside the judgment dated 28.02.2019 and order on sentence dated 06.03.2019 passed in Complaint Case No. 15367/2016 titled as 'M/S B.D. Jain Trading Company Versus Ajay Marwah' by the learned Metropolitan Magistrate, Rohini Courts, Delhi.

(2.) The present petition is filed on the ground that the trial Court and the Appellate Court failed to take into consideration the fact that the petitioner herein was summoned on the basis of affidavit dated 07.09.2013 (Ex.CW1/1) filed by the respondent No. 2. As per the affidavit, there is no ingredient / substance / material by which prima facie makes out a case under Section 138 of Negotiable Instruments Act. Not only this, not even a single document which claimed to have been exhibited during trial is signed by any Judge. Moreover, in the affidavit, which is the basis of summoning, the petitioner as an accused under Section 138 of Negotiable Instruments Act, it is nowhere mentioned that whether any legally recoverable debt towards the petitioner or any demand was ever made or the cheque in question was ever handed over to respondent No. 2. Thus, both the Courts have failed to take into consideration the fact that the respondent No. 2 neither filed a detailed affidavit, which makes out a prima facie case under Section 138 of Negotiable Instruments Act for summoning the petitioner as an accused, nor has he examined himself as complainant.

(3.) Ld. counsel further submitted that the respondent No. 2 was not examined as witness and has not even exhibited the complaint. Thus, while concluding the arguments, learned counsel for petitioner submits that since there is no recoverable debt against the petitioner, even summoning order was perverse and both the Courts below have failed to consider the said fact, accordingly, the petition is deserves to be allowed.