Delhi High Court
Aeiforia Constructions Pvt. Ltd. & Anr vs Continental Carbon India Pvt. Ltd. & Anr on 26 February, 2026
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~J-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 26th February 2026
+ CRL.M.C. 5260/2024, CRL.M.A. 20106/2024, CRL.M.A.
29693/2025
AEIFORIA CONSTRUCTIONS PVT. LTD. & ANR.
.....Petitioners
Through: Mr. Mrinal Kumar Sharma and Mr.
Veer Bhadra Singh, Advocates.
versus
CONTINENTAL CARBON INDIA PVT. LTD.
.....Respondent
Through: Mr. Gauhar Mirza, Advocate.
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
By way of the present petition filed under section 482 of the
Code of Criminal Procedure 1973 („Cr.P.C‟), the petitioners (accused
persons) inter-alia seek quashing of summoning order dated
29.04.2023 passed by the learned Metropolitan Magistrate, Digital
Court-01, Patiala House Courts, New Delhi in criminal complaint
bearing CC NI Act No. 9670/2022 in proceedings under section 138
of the Negotiable Instruments Act, 1881 („NI Act‟).
2. Notice on this petition was issued vidé order dated 12.07.2024,
whereby upon a first blush reading of the impugned order, this court
was constrained to stay proceedings pending before the learned
Signature Not Verified
Signed By:DIVYA
SHARMA
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Date:26.02.2026 14:51
Magistrate, since the summoning order appeared to be in the nature of
a template order and failed to reflect any application of mind to the
facts of the case, as would be necessary prior to issuance of summons
to the accused persons.
3. Vidé order dated 12.07.2024 the State was deleted as party-respondent
in the matter. Counter-affidavit dated 11.08.2024 has subsequently
been filed on behalf the sole respondent (complainant) in the case.
Written submissions have also been filed by the parties. The court has
heard Mr. Mrinal Kumar Sharma, learned counsel appearing on behalf
of the petitioners; and Mr. Gauhar Mirza, learned counsel appearing
on behalf of the respondent.
FACTUAL MATRIX
4. Briefly, the dispute between the parties arises from an Agreement
dated 01.04.2019 signed between the respondent and the petitioners,
under which the parties inter-alia had agreed upon various timelines
for completion of certain construction projects and payments were to
be made by the petitioners to the respondent in that regard.
5. Thereafter, owing to certain disputes as to the timelines and payments
made, the parties signed a Security Bond dated 09.04.2021 under
which the respondent released the balance sum of Rs. 2,24,71,917/- to
the petitioners. Thereupon, the petitioners issued to the respondent a
cheque bearing No. 003503, which was later replaced by another
cheque bearing No. 003504, as „security‟ against the payment so
made. Since the respondent alleged that further defaults had been
committed by the petitioners in completing the work, the respondent
presented the „security‟ cheque bearing No. 003504 for encashment,
Signature Not Verified
Signed By:DIVYA
SHARMA
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Date:26.02.2026 14:51
which cheque was returned by the petitioners‟ bank unpaid vidé a
cheque return memo dated 01.07.2020 citing “Funds Insufficient” as
the reason.
6. Consequently, the respondent issued a Legal Notice dated 29.07.2022
to the petitioners, following which a complaint dated 12.09.2022
came to be filed under section 138 of the NI Act bearing CC NI Act
No. 9670/2022, in which complaint summons were issued vidé
impugned order dated 29.04.2023; and notice under section 251
Cr.P.C. was also framed against the petitioners on 31.08.2023. The
matter before the learned Magistrate is stated to be at the stage of
complainant‟s evidence.
SUBMISSIONS ON BEHALF OF THE PETITIONERS
7. Mr. Sharma submits, that the cheque for Rs.2,24,71,917/- was issued
merely as a „security‟ instrument under the Security Bond dated
09.04.2021, and was not meant to be presented for immediate
encashment. It is argued that clause 5 of the bond specifically
stipulated that the cheque could be presented only upon written
intimation of default to the petitioners, and after allowing a 45-day
cure period. The petitioners‟ contention is that no such intimation was
issued before encashment, which made the presentment of the cheque
contrary to the contractual terms.
8. The petitioners dispute their liability as alleged by the respondent
against the cheque, contending that the project was over 90%
complete and corresponding payments had been received by the
respondent. Accordingly, it is argued that as of the date of
presentment of the cheque, no „enforceable debt or liability‟ existed
Signature Not Verified
Signed By:DIVYA
SHARMA
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Date:26.02.2026 14:51
within the meaning of section 138 of the NI Act; and therefore, the
proceedings under section 138 are not maintainable.
9. Furthermore, Mr. Sharma argues that the learned Magistrate has
proceeded to issue summons to the accused persons in a perfunctory
and mechanical manner, without prima facie examining whether the
ingredients of the offence under section 138 of the NI Act are made-
out, especially considering that the cheque had been issued only by
way of „security‟.
10. In this regard, learned counsel draws attention to the impugned
summoning order, which reads as under:
“I have perused the complaint along with other supporting
documents and it appears that the board resolution in favour of the
AR of the complainant company does not bear the signature of any
director.
“Ld. Counsel for complainant submits that she will rectify
the mistake and will file the amended board resolution on the
NDOH.
“I have perused the complaint along with other supporting
documents and it appears that the complete volume of the Digital
file is not uploaded on LAYERS.
“The Reader of this court is directed to upload the same on
LAYERS as per rules.
“1. I have perused the complaint, Authorization in favour
of the AR of the complainant, pre-summoning evidence by way of
affidavit of the AR of the complainant and the documents relied
upon by the complainant. The present complaint has been filed
within the limitation/extended period of limitation (In Re
Cognizance for Extension of Limitation dated 08.03.2021 (Suo
Moto Writ Petition (Civil) No.3/2020 and miscellaneous
application No. 665/2021) and is within the jurisdiction of this
Court. The complaint and the original documents have beenSignature Not Verified
Signed By:DIVYA
SHARMA
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Date:26.02.2026 14:51
submitted to the Ahlmad for safe custody. The documents have
been identified today in accordance with the pre-summoning
evidence by way of affidavit.
“2. In light of the decision of the Hon’ble Supreme Court
in A.C. Narayanan v. State of Maharashtra &Anr. (2014) 11 SCC
790, Full Bench, examination of the complainant upon oath for
issuance of process is a matter of discretion of the Magistrate. In
the considered opinion of this Court, there is no need to examine
the complainant for the purpose of issuance of process. There is
sufficient material before this Court to proceed against the
accused. I hereby take cognizance of the offence under Section
138 of the NI Act.
“3. Accordingly, issue summons to accused no. 1 and 2 for
being the drawer and signatory to the impugned cheque. The
summons are to be sent upon filing of PF/RC within one month from
today, returnable on 07.08.2023. The complainant is directed to file
metadata form before filing of PF. The process server is directed to
serve the summons by way of affixation, if premises are found locked
or same could not be served personally or on any adult male
member. To expedite service, the complainant is at liberty to serve
the summons through speed post/approved courier, subject to filing
internet generated tracking report of service on the next date of
hearing. The complainant may also send summons through email
and WhatsApp to the accused and file the requisite affidavit of
service along with Certificate u/S 65B Evidence Act on the next date
of hearing.
“4. An endorsement be also made on the form for summons
that if application for compounding at first or second hearing is
made, the Court may pass appropriate orders at the earliest as per
judgment of M/s Meters & Instruments (P) Ltd. v. Kanchan Mehta,
(2018) 1 SCC 560 and if settlement is made at subsequent stages,
the consequences as provided in Damodar S. Prabhu v. Syed
Babulal H; (2010) 5 SCC 663 shall be enforced.
“5. The Ahlmad is directed to mention the official email id of
the Court, the URL link as well as the permanent meeting number of
video conferencing through CISCO Webex platform, on the form forSignature Not Verified
Signed By:DIVYA
SHARMA
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Date:26.02.2026 14:51
issuance of summons. Complainant is directed to file PF and
provide copies of the complaint and other necessary documents,
within one month from today, failing which the complaint may be
dismissed under Section 204(4). CrPC.
“6. Renotify for appearance of the accused/furnishing of bail
bonds/consideration on Notice under Section 251. CrPC on
07.08.2023.”
(emphasis supplied)
11. Learned counsel submits, that in view of the law laid down by the
Supreme Court in Pepsi Foods Ltd .& Anr. vs. Special Judicial
Magistrate & Ors., 1 Dashrathbhai Trikambhai Patel vs. Hitesh
Mahendrabhai Patel, 2 and Mehmood Ul Rehman vs. Khazir
Mohammad Tunda & Ors,3 the impugned summoning order deserves
to be set-aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
12. Appearing on behalf of the respondent, Mr. Mirza opposes the
quashing of the summoning order in the proceedings under section
138 of the NI Act, submitting that the complaint prima-facie discloses
commission of the offence under section 138 of the NI Act by the
petitioners, warranting trial.
13. Learned counsel submits, that the present petition is misconceived,
since issuance of the cheque and the signatures appearing thereon
stand admitted by the petitioners; and that therefore, the statutory
presumption under section 139 of the NI Act operates against the
petitioners.
1
(1998) 5 SCC 749
2
(2023) 1 SCC 578
3
(2015) 12 SCC 420
Signature Not Verified
Signed By:DIVYA
SHARMA
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14. Mr. Mirza submits, that whether the cheque was given as „security‟ or
towards an accrued debt, is a matter of evidence and is not a defence
to be considered by the learned Magistrate at the stage of issuance of
summons.
15. In support of his submissions, learned counsel for the respondent has
placed reliance on APS Forex Services (P) Ltd. vs. Shakti
International Fashion Linker;4 Shiv Kumar vs. Ramavtar Agarwal;5
Northern India Paint Colour & Varnish Co. LLP vs. Sushil
Chaudhary; 6 and Sripati Singh vs. State of Jharkhand & Anr., 7
arguing that the legal presumption inures in favour of the holder of
the cheque; and that even dishonour of a cheque given as „security‟
attracts liability under section 138 of the NI Act when the underlying
obligation remains unpaid.
16. It is argued that the powers under section 482 of the Cr.P.C. are to be
exercised sparingly; and only where proceedings are demonstrably
vexatious or legally untenable should the High Court quash pending
criminal proceedings.
17. In support of this submissions, learned counsel also relies upon
judgments of the Supreme Court in Vipin Kr. Gupta vs. Sarvesh
Mahajan;8 Rathish Babu Unnikrishnan vs. State;9 and Rajiv Thapar
4
(2020) 12 SCC 724
5
(2020) 12 SCC 500
6
2023 SCC OnLine Del 7193
7
(2022) 18 SCC 614
8
2019 SCC OnLine Del 12349
9
2022 SCC OnLine SC 513
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Signed By:DIVYA
SHARMA
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vs. Madan Lal Kapoor,10 to contend that disputed factual issues, such
as existence of liability or contractual breach, fall within the domain
of the learned trial court and should not be entertained as grounds for
quashing of proceedings.
18. Mr. Mirza further argues, that as per settled law, there is no
requirement for a Magistrate to record reasons while passing a
summoning order. Furthermore, learned counsel argues, that the meta-
data filed by the respondent along with the complaint gives the
requisite details of the matter, which was placed before the learned
Magistrate at the stage of taking cognizance and issuance of
summons, thereby ensuring that the learned Magistrate had applied
his mind before issuing summonses.
19. Reliance in this regard is placed on Sunil Todi vs. State of Gujarat,11
Dy. Chief Controller of Imports & Exports vs. Roshanlal Agarwal,12
and State of Gujarat vs. Afroz Mohammed Hasanfatta, 13 which
judgments affirm that a Magistrate only needs to ascertain that there
are sufficient grounds to proceed, and a detailed order is not required
at the summoning stage.
20. Lastly, it is also argued that petitioners chose to file the present
petition only after notice was framed on 31.08.2023 under section 251
of the Cr.P.C., in which proceedings the petitioners had admitted their
signatures on the cheque and receipt of the statutory legal notice. It is
10
(2013) 3 SCC 330
11
(2022) 16 SCC 762
12
(2003) 4 SCC 139
13
(2019) 20 SCC 539
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SHARMA
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submitted that the order framing notice, which is a revisable order,
ought to have been challenged, if at all, within a period of 90 days;
instead of filing the present petition, which came to be filed much
later, only on 11.07.2024.
LEGAL LANDSCAPE
21. Examining the relevant legal landscape, in Sunil Todi the Supreme
Court has inter-alia observed as follows:
“41. In Birla Corpn. Ltd. v. Adventz Investments & Holdings
Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd.,
(2019) 16 SCC 610 : (2020) 2 SCC (Civ) 713 : (2020) 2 SCC (Cri)
828], the earlier decisions which have been referred to above were
cited in the course of the judgment. The Court noted : (SCC p. 628,
para 26)
“26. The scope of enquiry under this section is extremely
restricted only to finding out the truth or otherwise of the
allegations made in the complaint in order to determine whether
process should be issued or not under Section 204 CrPC or
whether the complaint should be dismissed by resorting to
Section 203 CrPC on the footing that there is no sufficient
ground for proceeding on the basis of the statements of the
complainant and of his witnesses, if any. At the stage of enquiry
under Section 202 CrPC, the Magistrate is only concerned with
the allegations made in the complaint or the evidence in support
of the averments in the complaint to satisfy himself that there is
sufficient ground for proceeding against the accused.”
*****
“46. In the present case, the Magistrate has adverted to:
(i) The complaint;
(ii) The affidavit filed by the complainant;
(iii) The evidence as per evidence list and; and
(iv) The submissions of the complainant.
“47. The order passed by the Magistrate cannot be held to
be invalid as betraying a non-application of mind. In Chief
Controller of Imports & Exports v. Roshanlal Agarwal [Chief
Controller of Imports & Exports v. Roshanlal Agarwal, (2003) 4
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SHARMA
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Date:26.02.2026 14:51
SCC 139 : 2003 SCC (Cri) 788], this Court has held that in
determining the question as to whether process is to be issued, the
Magistrate has to be satisfied whether there is sufficient ground
for proceeding and not whether there is sufficient ground for
conviction. Whether the evidence is adequate for supporting the
conviction can only be determined at the trial. [See also in this
context the decision in Bhushan Kumar v. State (NCT of Delhi)
[Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424 :
(2012) 2 SCC (Cri) 872].”
(emphasis supplied)
22. In its judgment in Mehmood Ul Rehman while relying on the
celebrated judgment of the Supreme Court in Pepsi Foods Ltd., and
emphasizing the seriousness of setting in motion the process of
criminal law against a person, the Supreme Court has reiterated the
following:
“20. The extensive reference to the case law would clearly
show that cognizance of an offence on complaint is taken for the
purpose of issuing process to the accused. Since it is a process of
taking judicial notice of certain facts which constitute an offence,
there has to be application of mind as to whether the allegations in
the complaint, when considered along with the statements
recorded or the inquiry conducted thereon, would constitute
violation of law so as to call a person to appear before the criminal
court. It is not a mechanical process or matter of course. As held
by this Court in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial
Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in
motion the process of criminal law against a person is a serious
matter.
*****
“22. The steps taken by the Magistrate under Section
190(1)(a) CrPC followed by Section 204 CrPC should reflect that
the Magistrate has applied his mind to the facts and the statements
and he is satisfied that there is ground for proceeding further in
the matter by asking the person against whom the violation of law
is alleged, to appear before the court. The satisfaction on theSignature Not Verified
Signed By:DIVYA
SHARMA
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Date:26.02.2026 14:51
ground for proceeding would mean that the facts alleged in the
complaint would constitute an offence, and when considered along
with the statements recorded, would, prima facie, make the accused
answerable before the court. No doubt, no formal order or a
speaking order is required to be passed at that stage. The Code of
Criminal Procedure requires speaking order to be passed under
Section 203 CrPC when the complaint is dismissed and that too the
reasons need to be stated only briefly. In other words, the
Magistrate is not to act as a post office in taking cognizance of each
and every complaint filed before him and issue process as a matter
of course. There must be sufficient indication in the order passed
by the Magistrate that he is satisfied that the allegations in the
complaint constitute an offence and when considered along with the
statements recorded and the result of inquiry or report of
investigation under Section 202 CrPC, if any, the accused is
answerable before the criminal court, there is ground for
proceeding against the accused under Section 204 CrPC, by issuing
process for appearance. The application of mind is best
demonstrated by disclosure of mind on the satisfaction. If there is
no such indication in a case where the Magistrate proceeds under
Sections 190/204 CrPC, the High Court under Section 482 CrPC
is bound to invoke its inherent power in order to prevent abuse of
the power of the criminal court. To be called to appear before the
criminal court as an accused is serious matter affecting one’s
dignity, self-respect and image in society. Hence, the process of
criminal court shall not be made a weapon of harassment.
“23. Having gone through the order passed by the
Magistrate, we are satisfied that there is no indication on the
application of mind by the learned Magistrate in taking cognizance
and issuing process to the appellants. The contention that the
application of mind has to be inferred cannot be appreciated. The
further contention that without application of mind, the process will
not be issued cannot also be appreciated. Though no formal or
speaking or reasoned orders are required at the stage of Sections
190/204 CrPC, there must be sufficient indication on the
application of mind by the Magistrate to the facts constituting
commission of an offence and the statements recorded underSignature Not Verified
Signed By:DIVYA
SHARMA
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Section 200 CrPC so as to proceed against the offender. No doubt,
the High Court is right in holding that the veracity of the allegations
is a question of evidence. The question is not about veracity of the
allegations, but whether the respondents are answerable at all
before the criminal court. There is no indication in that regard in
the order passed by the learned Magistrate.”
(emphasis supplied)
23.
23. Furthermore, in its recent judgment in JM Laboratories & Ors. vs.
State of A.P & Anr., 14 the Supreme Court has re-enunciated that a
summoning order passed by a Magistrate should reflect his application
of mind in the following words:
“8. In the judgment and order of even date in criminal
appeal arising out of SLP (Crl.) No. 2345 of 2024 titled “INOX Air
Products Limited Now Known as INOX Air Products Private
Limited v. The State of Andhra Pradesh”, we have observed thus:
“33. It could be seen from the aforesaid order that except
recording the submissions of the complainant, no reasons are
recorded for issuing the process against the accused persons.
“34. In this respect, it will be relevant to refer to the
following observations of this Court in the case of Pepsi Foods
Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 (supra):
“28. Summoning of an accused in a criminal case is
a serious matter. Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring only two witnesses to
support his allegations in the complaint to have the criminal law set
into motion. The order of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature of allegations made in
the complaint and the evidence both oral and documentary in support
thereof and would that be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that the Magistrate is a
silent spectator at the time of recording of preliminary evidence before
summoning of the accused. The Magistrate has to carefully scrutinise the
evidence brought on record and may even himself put questions to the
complainant and his witnesses to elicit answers to find out the14
2025 SCC OnLine SC 208Signature Not Verified
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SHARMA
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truthfulness of the allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the accused.”
*****
“37. Recently, a Bench of this Court to which one of us (Gavai, J.)
was a Member, in the case of Lalankumar Singh v. State of Maharashtra
2022 SCC OnLine SC 1383 (supra), has observed thus:
“38. The order of issuance of process is not an empty formality.
The Magistrate is required to apply his mind as to whether sufficient
ground for proceeding exists in the case or not. The formation of such an
opinion is required to be stated in the order itself. The order is liable to
be set aside if no reasons are given therein while coming to the
conclusion that there is a prima facie case against the accused. No
doubt, that the order need not contain detailed reasons. A reference in
this respect could be made to the judgment of this Court in the case of
Sunil Bharti Mittal v. Central Bureau of Investigation, which reads thus:
*****
“53. However, the words “sufficient ground for proceeding”
appearing in Section 204 are of immense importance. It is these words
which amply suggest that an opinion is to be formed only after due
application of mind that there is sufficient basis for proceeding against
the said accused and formation of such an opinion is to be stated in the
order itself. The order is liable to be set aside if no reason is given
therein while coming to the conclusion that there is prima facie case
against the accused, though the order need not contain detailed reasons.
A fortiori, the order would be bad in law if the reason given turns out to
be ex facie incorrect.”
*****
“9. In the present case also, no reasons even for the
namesake have been assigned by the learned Magistrate. The
summoning order is totally a non-speaking one. We therefore find
that in light of the view taken by us in criminal appeal arising out of
SLP (Crl.) No. 2345 of 2024 titled “INOX Air Products Limited
Now Known as INOX Air Products Private Limited v. The State of
Andhra Pradesh”, and the legal position as has been laid down by
this Court in a catena of judgments including in the cases of Pepsi
Foods Ltd. v. Special Judicial Magistrate, Sunil Bharti Mittal v.
Central Bureau of Investigation, Mehmood Ul Rehman v. Khazir
Mohammad Tunda and Krishna Lal Chawla v. State of Uttar
Pradesh, the present appeal deserves to be allowed.”
(emphasis supplied)
Signature Not Verified
Signed By:DIVYA
SHARMA
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DISCUSSION AND CONCLUSIONS
24. In the present case, it is noticed that the learned Magistrate has referred
in some detail to the procedural aspects and steps that are to be
complied-with by the complainant for the physical process of issuing
summons to the accused persons, and has set-out the mode and manner
in which the summons are to be served or affixed; and how the tracking
report is to be generated, including the various modes and platforms
through which summons are to be served. There is however no
reference to some of the essential ingredients of the offence under
section 138 of the NI Act namely, the reason for which the cheque has
been returned unpaid; whether the statutory notice under section 138 of
the NI Act had been issued and received by the accused person(s); and
whether the timelines prescribed for the aforementioned aspects have
been adhered to.
25. Though, there is no cavil with the proposition that it is not necessary
for the Magistrate to set-out or discuss in detail the specifics and
particulars of the factual matrix in which the complaint has been filed,
the settled law on the point also requires that the Magistrate must be
satisfied that there are sufficient grounds for proceeding with the matter
(not that there are sufficient grounds for conviction). In the opinion of
this court, such satisfaction must also be reflected in the summoning
order, to ensure that the Magistrate does not omit to check those
ingredients, since failing that, a court before which a summoning order
is challenged would be bereft of any basis for examining whether such
order has been validly issued.
Signature Not Verified
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SHARMA
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26. It would be reckless for the courts to disregard the cautionary words of
the Supreme Court in Pepsi Foods, namely that issuance of summons
in a criminal case is a very serious matter, since even mere issuance of
summons by criminal court may stigmatise a person, who may not be
required to be summonsed at all.
27. Considering that the summoning order in the present case is dated
29.04.2023, and since this court has perused the complaint, the
requisite documents, including the subject cheque, the cheque
dishonour memo, and the statutory notice issued under section 138 of
the NI Act, that have been placed before it, this court would refrain
from interfering with the impugned summoning order, though the
ingredients of the offence do not find any mention in it.
28. In view of what is recorded above, upon considering the impugned
order in the present case, and bearing in mind that it is also necessary to
proceed with matters under section 138 of NI Act as expeditiously as
possible, this court is not inclined to interfere with the impugned
summoning order in the present case.
29. The petition is accordingly dismissed, declining to interfere with the
impugned summoning order; vacating the stay initially granted; and
directing the learned Magistrate to proceed with the matter, in
accordance with law.
ANUP JAIRAM BHAMBHANI, J
FEBRUARY 26, 2026/HMJ
Signature Not Verified
Signed By:DIVYA
SHARMA
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Date:26.02.2026 14:51
