The failure to file an electronic evidence certificate under Section 65B of the Indian Evidence Act is a curable procedural defect; therefore, a complaint should not be dismissed without granting the party an opportunity to produce the requisite certificate.

J U D G M E N T

1. The present leave petition has been filed under Section 378(4) of the Code of Criminal Procedure, 1973 [CrPC] seeking leave to file an appeal against the impugned order dated 04.01.2022 passed by the learned MM-04/NI Act/South, Saket Courts, New Delhi.

2. In view of the submissions made and considering the averments made in the petition, this Court is of the prima facie view that the petitioner (hereinafter referred to as appellant) has made out a case for grant of leave to appeal.

3. Accordingly, leave is granted and the Registry is directed to give a ‘Number’ to this petition as an appeal.

CRL.A......../2023 (TO BE NUMBERED)

4. The present appeal has been filed by the appellant seeking setting aside of the order dated 04.01.2022 passed by the learned MM-04/NI Act/South, Saket Courts, New Delhi [learned Trial Court] in criminal complaint being CT No.12629/2017 titled Adarsh Gaur vs. Metenuo Kechu, whereby the respondent no.2 has been acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 [NI Act].

5. As per the facts involved, respondent no.2, being the proprietor of M/s Element Oxygen, entered into a Lease Deed dated 10.06.2016 with the appellant for property D-38, Ground Floor, Saket, New Delhi-110017 for a period of 11 months from 10.06.2016 to 09.05.2017 and was to pay a fixed rent of Rs.75,000/- per month, excluding the electricity, water, cable television and kitchen gas charges. Thus, the respondent no.2 handed over 11 post dated cheques for an amount of Rs.67,500/- each to the appellant for rent (after deduction of TDS) along with the cheque bearing no.166637 dated 25.06.2017 for an amount of Rs.80,500/- drawn on Axis Bank, Khan Market, Delhi for the other charges.

6. The respondent no.2 defaulted in payment of rent for the months of April and May, 2017 as also the additional charges including electricity, water etc. Despite expiry of the tenancy, the respondent no.2 failed to clear the dues, resulting in the appellant presenting the cheque bearing no.166637 dated 25.06.2017 for an amount of Rs.80,500/- drawn on Axis Bank, Khan Market, Delhi for encashment. The said cheque was dishonoured vide return memo dated 29.06.2017 for the reasons ‘Insufficient Funds’. The appellant thereafter sent a Legal Notice dated 01.07.2017 to the respondent no.2 for clearance. Upon receipt thereof, the respondent no.2 approached the appellant assuring her that all the dues shall be cleared. Since the respondent no.2 failed to make the payments again, the appellant again presented cheque bearing no.166637 dated 25.06.2017 for an amount of Rs.80,500/- drawn on Axis Bank, Khan Market, Delhi for encashment, which was again dishonoured for the reason ‘Insufficient Funds’, vide return memo dated 10.08.2017. The appellant sent another Legal Notice dated 08.09.2017 which was allegedly delivered to the respondent no.2 on 11.09.2017 calling upon the respondent no.2 to make the payment of the dishonoured cheques. The failure of the respondent no.2 to make the necessary payments resulted in filing of the present complaint under Section 138 of the NI Act on 24.10.2017.

7. The learned Trial Court, relying upon MSR Leathers v. S. Palaniappan and Anr. (2013) 1 SCC 177, wherein it is held that prosecution based upon second or successive dishonour of cheque is permissible, if it satisfies the requirements stipulated in the Proviso to Section 138 of the NI Act, took cognizance of the offence punishable under Section 138 of the NI Act and summoned the respondent no.2 vide order dated 16.0