application under Section 138 of the Negotiable Instrument Act 1881

 

In the Court of Learned Chief Judicial Magistrate, at Alipore, South 24 Parganas.

 

COMPLAINT CASE NO: C-     ________of 2022

 

In the matter of:

An Application under Section 200 of Criminal Procedure Code’ 1973;

          ---AND---

P.S. Ballygunge

In the matter of:

Sri Bodh Raj Seth, aged about 79 years, Son of Late D.D. Seth, residing at Premises being no. 19, Deodar Street “Nandanik Apartment”, Flat BI 304, Kolkata – 700019, Police Station Ballygunge, District South 24 Parganas, Mobile Number : 9831568101.

 ……COMPLAINANT

- Versus –

Shri Kirit Popatlal Zaveri, Son of Late Popatlal Zaveri, residing at Flat No. 3B, Block II, Lavkush Apartment, 2/1, Naresh Mitra Sarani, Kolkata – 700026, Police Station – Bhawanipur, and having Office at Room No. 65, premises being no. 10, Old Post Office, Kolkata – 700001, and also at C/o. Mr. Zatin Zaveri, having Office at Premises being no. 119, Tulsi Market, (Near Rashab Petrol Pump ), Ring Road, Surat – 395002. Mobile No. : 9830022448, Email : kiritzaveri@hotmail.com / zaveri.kirit@gmail.com

                                                … ACCUSED

 

OFFENCE COMMITTED TO BE PUNISHABLE UNDER SECTION 138  OF NEGOTIABLE INSTRUMENT ACT, 1881 AS AMENDED UP-TO-DATE

The humble petition of the complainant above named, most respectfully;

 

SHEWETH AS UNDER :-

 

1. That the Complainant is a peace loving and law abiding citizen of the Country, residing permanently at the address given in the cause title of this application.

 

2. That the accused have taken financial assistance from the Complainant for a sum of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, in Cash. The accused has given due acknowledgment being receipt of sum of money.

 

3. That the accused was agreed to refund the said financial assistance availed by him to the Complainant, within a reasonable period. The accused committed as assured to refund such money as of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, to the Complainant and also assured to compensate appropriately to the Complainant during such period.

 

4. That the accused did not pay any compensation thereon as he promised to pay to the complainant and did not refund money to the complainant. The complainant is a Senior Citizen and an old aged person has given his hard earned money to the accused, who allured the complainant for his need and consequently took time on different pretext though did not give back the money to the complainant.

 

5. That the Complainant visited the residence and office of the accused on several occasion, with his request to get his money back from the accused. The accused on all and every occasion promised to pay back the said money to the complainant though did not pay.

 

6. That lastly the accused issued a Cheque being no. “000385”, dated 22-08-2022, drawn on Punjab & Sind Bank, Calcutta Lindsay Street Branch, Calcutta – 700087, for a sum of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, in favour of the complainant, which has been duly signed and given in the presence of the complainant.

 

7. That it is to state that in discharge of existing legal debts and or liabilities, the accused issued the following Cheque, in favour of the Complainant ;

 

a)    Cheque being no. “000385”, dated 22-08-2022, drawn on Punjab & Sind Bank, Calcutta Lindsay Street Branch, Calcutta – 700087, for a sum of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, in favour of the Complainant.

 

8. That the Complainant presented the said cheque to his banker ICICI Bank, Kolkata, under the jurisdiction of Park Street Police Station, within its validity period, for collection of value of the said Cheque no. “000385”, dated 22-08-2022, drawn on Punjab & Sind Bank, Calcutta Lindsay Street Branch, Calcutta – 700087, for a sum of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, but the same was dishonored with the remarks “returned unpaid” vide Cheque Return memo dated 02-09-2022, which fact came to the knowledge of the complainant on or about 05-09-2022, from his Banker along with Banker’s Cheque return Memo, dated 02-09-2022.

 

9. That the above facts make it abundantly clear that the accused person have mischievously and intentionally issued the said cheque with ulterior design knowing fully well that the said cheque would not be honoured on presentation on account of insufficiency of funds.

 

10. That the Complainant served one Legal Notice under Section 138 (b) of the Negotiable Instrument Act, 1881, through his Learned Advocate Ashok Kumar Singh, vide notice dated 26^th day of August’ 2022, within prescribed period of the Negotiable Instrument Act, 1881, calling upon the accused person to make the payment of the said cheque being total value as Cheque being no. “000385”, dated 22-08-2022, drawn on Punjab & Sind Bank, Calcutta Lindsay Street Branch, Calcutta – 700087, for a sum of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, within a period of ( 15 ) fifteen days from the date of receipt of such notice, through Registered Post with A/D, as on 16-09-2022. The said notice given on all available address of the accused, including the address given in the cause title of the application.

 

11. That the Learned Advocate of the Complainant on getting tracking report of the Indian Postal Authority, found that all the postal services has been duly shown as “delivered” on 21/09/2022, at Flat No. 3B, Block II, Lavkush Apartment, 2/1, Naresh Mitra Sarani, Kolkata – 700026, Police Station – Bhawanipur, and on 22/09/2022, for the address as Room No. 65, premises being no. 10, Old Post Office, Kolkata – 700001, given in the cause title of the application, which postal remarks shown as “Item Delivered” dated 22/09/2022, and regarding the other addresses of the accused being (1) C/o. Mr. Zatin Zaveri, residing at premises being no. G-9C, Indralok Complex, ( Opposite Lake view Resturant ), Syrat, Duman Road, Surat – 395007, the postal envelop returned with remark “Not Delivered” to the Sender, and (2) C/o. Mr. Zatin Zaveri, having Office at Premises being no. 119, Tulsi Market ( Near Rashab Petrol Pump ), Ring Road, Surat – 395002, the postal envelop returned with remark “Addressee Left without instructions” dated 27/09/2022, and the said notice given on the available address of the accused person, and in terms of the provisions of the General Clauses Act, therefore it is well presumed that the accused person is in receipt of the notices served on him latest by 22/09/2022, as it appears in the content of facts of delivery of articles on the given addresses.

 

12. That the accused person is well within the knowledge of the dishonor of the said cheque and the notices served on him but the accused persons did not make any payment towards the value of the said cheque within a period of fifteen days from the date of knowledge which expire latest by 07/10/2022, and after receiving the demand notice, the accused person replied the same through his counsel vide reply letter dated 27^th September’ 2022, wherein the accused person denied the averments made in the demand notice without paying the said cheque value to the complainant till date. Therefore the cause of action arose for the present complaint. The Complainant vehemently denies the averments and assertions made in the said reply letter dated 27^th September’ 2022, given by the accused as the same are false, fabricated and founded and the same are just plausible explanation without having any foundational facts in order to make a sly attempt to deny the legally enforceable debt/liability to pay the cheque value with a view to escape from his statutory liability denying and defying the sacrosanct provisions of the Negotiable Instrument Act, 1881 as amended up-to-date. Finding no other option, the Complainant is compelled to file this complaint petition before the Learned Court from the above stated Cause of Action and the complaint is filed well within the period of limitation.

 

13. That, due to dishonor of cheque in question, which was issued by the accused person against the discharge of his lawful debt as aforesaid, the accused person is liable for prosecution under Section 138 of the Negotiable Instrument Act, 1881, as amended up-to-date.

 

14. That thus the accused has committed an offence punishable under Section 138 of the Negotiable Instrument Act, 1881 as amended up-to-date.

 

15. That the Complainant crave leave of the Learned Court to file Civil Suit against the accused person for recovery of the cheque value with interest, compensation, and Cost, etc.

 

16. That the Cause of Action for filling the Complaint arose to the complainant within the jurisdiction of the Learned Court when the accused person failed to make payment of the said Cheque Value to the complainant within a period of 15 (Fifteen) days from the date of receipt of the demand notice.

 

17. That the accused is guilty of an offence under Section 138 of the Negotiable Instrument Act 1881, as amended up-to-date and is liable to be punished under the said Act.

 

18. That this petition of Complaint is made bonafide and for the ends of justice.

In the aforesaid circumstances it is most respectfully prayed that your Honour may graciously be pleased to take cognizance of the matter and issue process against the accused person under section 138 of the Negotiable Instruments Act 1881, as amended up-to–date and pass such other order or orders as your Honour may deem fit and proper FOR THE END OF JUSTICE.

And for this act of kindness your petitioner as in duty bound and shall ever pray.

 

List of Witness: -

1. Complainant
2. Accused’s Banker.
3. Complainant’s Banker.
4. Document & Others.
5. other related witnesses.

 

List of Documents : -

 

1.   Cheque being no. “000385”, dated 22-08-2022, drawn on Punjab & Sind Bank, Calcutta Lindsay Street Branch, Calcutta – 700087, for a sum of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, in favour of the complainant,

2.   Bank’s Return Memo;

3.   Legal Demand Notice;

4.   Postal receipts;

5.   Track report of postal authority;

6.   Acknowledgment of money taken by the accused;

7.   Other documents.

8.   Other Witnesses.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Verification

 

I, Shri Bodh Raj Seth, within named Complainant, of this instant application under section 138, of the Negotiable Instrument Act’ 1881, as amended up-to-date, I am well acquainted and conversant with all the material facts and circumstances, as mentioned in the forgoing paragraphs of this instant application filed against the accused person within named, and whereas I am verifying this instant application as on ………the day of …………..2022, at Kolkata.

 

 

 

                                                                   Shri Bodh Raj Seth

Identified by me,

 

                                                                             Advocate.

Prepared in my office,

 

Advocate.

Dated :_________________2022.

Place : Alipore Criminal Court, Kolkata.

 

 

 

 

 

 

 

 

 

 

 

 

A F F I D A V I T

 

I, Sri Bodh Raj Seth, aged about 79 years, Son of Late D.D. Seth, by faith Hindu, by Occupation Chartered Accountant, residing at Premises being no. 19, Deodar Street “Nandanik Apartment”, Flat BI 304, Kolkata – 700019, Police Station Ballygunge, District South 24 Parganas, Mobile Number : 9831568101, DO HEREBY SOLEMNLY AFFIRM AND SAYS AS FOLLOWS :

 

1.           That I am Competent to Swear this affidavit.

 

2.           That I am placing this application under Section 200 of Cr.P.C. before the Learned Court, for the first time, and no other application has ever been placed and or filed before the Learned Court, on in any other Court, on the self same set of facts.

 

3.           That the application is within the period of limitation as enumerated under the Law.

 

4.           That the Cause of Action for the present proceedings under Section 200 of Cr.P.C. for the Offences committed to be punishable under Section 138 of the Negotiable Instrument Act’ 1881, has been arisen within the jurisdiction of the Learned Court.

 

5.           That the facts contained in my complaint / application, the contents of which have not been repeated herein for the sake of brevity may be read as an integral part of this affidavit and are true and correct to my knowledge.

 

That the above statements of my declaration, are true to my knowledge and belief.

 

 

 

Deponent

Identified by me,

 

Advocate.

 

Prepared in my Chamber,

 

Advocate.

Dated : _____________2022.

Place : Alipore Criminal Court, Kolkata.

 

N O T A R Y

In the Court of Learned Chief Metropolitan Magistrate, at Bankshall, Kolkata

 

COMPLAINT CASE NO: C-     ________of 2022

 

In the matter of:

An Application under Section 200 of Criminal Procedure Code’ 1973;

         

---AND---

 

In the matter of:

 

Shri Bodh Raj Seth,

                     ……COMPLAINANT

- Versus –

Shri Kirit Popatlal Zaveri                                                                                        … ACCUSED

       

                                              COURT FEES                              

 

 

 

 

 

 

 

 

 

 

 

 

 

In the Court of Learned Chief Metropolitan Magistrate, at Bankshall, Kolkata.

 

COMPLAINT CASE NO: C-     ________of 2022

 

In the matter of:

An Application under Section 200 of Criminal Procedure Code’ 1973;

         

---AND---

 

In the matter of:

 

Shri Bodh Raj Seth,

                     ……COMPLAINANT

- Versus –

Shri Kirit Popatlasl Zaveri.

                                                                                   … ACCUSED

       

                                              F I R I S H T I

{ Enclosures }

 

1.   Cheque being no. “000385”, dated 22-08-2022, drawn on Punjab & Sind Bank, Calcutta Lindsay Street Branch, Calcutta – 700087, for a sum of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, in favour of the complainant,

2.   Bank’s Return Memo;

3.   Legal Demand Notice;

4.   Postal receipts;

5.   Track report of postal authority;

6.   Acknowledgment of money taken by the accused;

7.   Other documents.

8.   Other Witnesses.

 

 

 

 

 

 

 

Vakalatnama

District : South 24 Parganas.

In the Court of the Learned Chief Judicial Magistrate, at Bankshall, Kolkata

                                                Case No.                         of  2022.

Shri Bodh Raj Seth                                              COMPLAINANT

Versus .

Shri Kirit Popatlal Zaveri,

                                                                                      ACCUSED

KNOW ALL MEN by this presents that I Sri Bodh Raj Seth, aged about 79 years, Son of Late D.D. Seth, residing at Premises being no. 19, Deodar Street “Nandanik Apartment”, Flat BI 304, Kolkata – 700019, Police Station Ballygunge, District South 24 Parganas, Mobile Number : 9831568101, 

do hereby constitute and appoint the undermentioned Advocate, Pleaderes, Vakils, jointly & each of them severally to be pleader of ME / US and on MY / OUR behalf to appear for ME / US in the above cause and to take such steps and proceeding as may be necessary on MY/ OUR behalf and for the purpose to make sign verify and present all necessary petitions, plaints, written statements and other document and do nominate and appoint or retain senior Counsels, Vakils, Advocate and other persons, lodge and deposit moneys and document and other papers in court and the same again to withdraw and to take out of Court and to obtain or grant as the case may be effectual receipts and discharge for the same and for all moneys which may be payable to ME / US in the premises. To enter into compromise with MY / OUR approval and withdraw all moneys from the court: AND GENERALLY to act in the premises and proceeding arising thereout whether by woy of execution, riview appeal or otherwise or in any manner contested therewith as effectually and to all intents and purpose as I / WE could act if personally present and ALSO for all and of the purpose aforesaid to appoint a substitute or substitutes and such substitution and as pleasure to revoke I / WE hereby ratifying and agreeing to confirm whatever  may be lawfully done by virtue hereof : IN WITNESS WHEREOF this Vakalatnama has by MY / US.

 

This_____________ day of __________ 2022       been executed

 

1. Shri Ashok Kumar Singh, Advocate. High Court Bar Association Room No. 15, High Court at Calcutta. Mobile Number : 9883070666 / 9836829666, Email : aksinghadvocate@rediffmail.com
2. Shri Biplab Some, Advocate
3. Miss Suchitra Chakraborty, Advocate
4. Shri Pritam Das, Advocate