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IN THE HIGH COURT OF DELHI AT NEW DELHI
Sanjeev Narula, J
NEETI SHARMA – Appellant
Versus
SARANJIT SINGH – Respondent
CRL.M.C. 2202/2025
If an affidavit is not there, whether a suit can be dismissed depends on the specific procedural requirements of the case and the nature of the proceedings. Generally, affidavits serve as supporting evidence or declarations made under oath, and their absence may weaken the case or delay the proceedings. However, the absence of an affidavit alone does not automatically lead to the dismissal of a suit, especially if the main pleadings, evidence, or other supporting documents are sufficient to establish the claim.
In certain types of cases, such as those involving sworn affidavits as a procedural requirement for initiating proceedings or for specific evidentiary purposes, the lack of an affidavit might be considered a procedural irregularity. This could potentially result in the dismissal or rejection of the suit if the affidavit was a mandatory procedural step. Nonetheless, in many instances, courts may allow parties to rectify the omission by submitting affidavits at a later stage or by relying on other admissible evidence.
It is important to note that procedural discretion often rests with the court, and the specific circumstances and the stage of proceedings will influence whether the absence of an affidavit can lead to dismissal. Generally, courts prioritize substantive justice over procedural technicalities, and a suit is less likely to be dismissed solely on the absence of an affidavit unless it is explicitly mandated by law or the procedural rules applicable to the case.
| Table of Content |
|---|
| 1. challenge to the issuance of notice for dishonored cheque. (Para 4 , 5) |
| 2. discussion on the necessity of judicial discretion in issuing notices. (Para 6 , 10 , 20) |
| 3. conclusion affirming dismissal of the petition. (Para 21 , 22 , 23) |
JUDGMENT
SANJEEV NARULA, J. (Oral):
CRL.M.A. 9851/2025 (Exemption)
1. Exemption is granted, subject to all just exceptions.
2. The Petitioner shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing.
3. Accordingly, the application stands disposed of.
CRL.M.C. 2202/2025 & CRL.M.A. 9850/2025 (for stay)
4. The present petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 , [“ BNSS ”] (formerly Section 482 of the Code of Criminal Procedure, 1973 , [“CrPC”]) challenges order dated 15th January, 2025, “Impugned notice” passed in CC NI Act No. 186/2025 titled as Saranjit Singh vs. Neeti Sharma, whereby the Petitioner has been served with a notice, under Section 223 of BNSS , giving him an opportunity of hearing in the aforenoted complaint.
5. Briefly stated, the facts of the case are as follows:
5.1 The cheque allegedly issued by the Petitioner to the Respondent has been dishonoured on presentation, prompting the Respondent to institute a complaint for offence under Section 138 of the Negotiable Instruments Act, 1881 ,
5.2 On receiving the above complaint, a notice dated 15th January, 2025, was issued by the Trial Court, to the Petitioner/ Proposed Accused in terms of proviso to Section 223 of BNSS affording an opportunity of hearing to the Petitioner, prior to taking cognizance of the offence.
6. Mr. Kapil Wadhwa, counsel for Petitioner, urges the following grounds to challenge the impugned notice:
6.1 The Trial Court has misdirected itself by issuing notice to Petitioner as a Proposed Accused, without applying its judicial mind to the contents of the complaint by first examining the Complainant and its witnesses on oath or examining the affidavits of the Complainant.
6.2 The Impugned notice is pre-mature and contrary to the scheme of Section 223 (1) of BNSS , which mandates that the complainant must first be examined, and judicial application of mind must precede the issuance of notice to any proposed accused. Bypassing this safeguard renders the process procedurally defective.
6.3 The complaint on the face of it lacks the necessary material particulars and foundational facts to sustain even a prima facie case under Section 138 of the NI Act. In such circumstances, the Trial Court ought to have dismissed the complaint at the threshold without proceeding to invoke Section 223 (1).
6.4 Reliance is placed on the decisions of the High Court of Kerala in Suby Antony v. Judicial First-Class Magistrate-III (Deleted) and Others,
7. Although the State was not initially arrayed as a party, considering the nature of the issue raised and its bearing on the exercise of criminal jurisdiction, the State is impleaded as a co-Respondent. Let the amended memo of parties be filed within one week from today. The Court has accordingly heard Mr. Laksh Khanna, Additional Public Prosecutor, on the question at hand.
8. The Court has carefully considered the rival contentions and examined the legal framework relating the challenge to the Impugned order.
9. The Impugned order reads as under:
“Fresh file received by way of assignment. It be checked and registered.
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