application for offence under Section 138 of the Negotiable Instrument Act

 

                   

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

 

 

COMPLAINT CASE NO: C-     ________of 2018

 

In the matter of:

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

         

---AND---

P.S. Netaji Nagar.

In the matter of:

 

Shri Bapi Chakraborty, Son of Late Subhas Chakraborty, residing at premises being no. 141, Rajpur Road, Netaji Nagar, Kolkata – 700 047.

 ……COMPLAINANT

- Versus –

 

Shri Goutam Ghosal, Son of Late Subodh Ghosal, residing at premises being no. 11/1, Bhattacharjee Para Road, Police Station – Thakurpukur, Kolkata – 700 063.

                                                                                   … ACCUSED

 

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

 

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

 

SHEWETH AS UNDER :-

 

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

 

2. That the accused Shri Goutam Ghosal, Son of Late Subodh Ghosal, residing at premises being no. 11/1, Bhattacharjee Para Road, Police Station – Thakurpukur, Kolkata – 700 063, taken money from the Complainant, on different pretext and manner, with a commitment to return the same at the earliest, within the month of May’ 2018.

 

3.   That the accused person in discharge of his existing legal enforceable debts and or liabilities, a cheque for an amount of Rs. 20,000/- ( Rupees Twenty Thousand ) only, has been issued in the name of the Complainant from the Account of the accused person, the said cheque was duly signed by the accused person.

 

4.   That the details of the said cheque is as follows :

 

Cheque no.	Date	Drawn on	Amount
870721	10/06/2018	State Bank of India Sakher Bazar Branch, Kolkata	Rs. 20,000/-

 

 

5.   That the said cheque was presented for realization within it’s validity period, with the banker of Complainant i.e. State Bank of India, Regent Estate Branch, Kolkata, Police Station – Netaji Nagar, but the same was dishonoured with the remarks “ Funds Insufficient” vide Cheque Return Memo dated 05 / 09 / 2018, which fact came to the knowledge of the Complainant on or about 05 / 09 / 2018, from his Banker along with the banker’s cheque Return Memo dated 05 / 09 / 2018.

 

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

 

7. That the Complainant served one Legal Notice under Section 138 (b) of the Negotiable Instrument Act, 1881, through it’s Learned Advocate Shri Debnath Saha, vide notice dated 3^rd October’ 2018, within prescribed period of the Negotiable Instrument Act, 1881, calling upon the accused person to make the payment of the said cheques total value as Cheque no. 870721, dated 10-06-2018, drawn on State Bank of India, Sakher Bazar Branch, Kolkata, West Bengal, for an amount of Rs. 20,000/- ( Rupees Twenty Thousand ) only, within a period of ( 15 ) fifteen days from the date of receipt of such notice, through Speed Post, as on 03-10-2018.

 

8. 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” and delivered on 04-10-2018, 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.

 

9. 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 person 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 20-10-2018, and therefore the cause of action arose for the present complaint.

 

10. That thus the accused has committed an offence punishable under Section 138 of the Negotiable Instrument Act, 1881 as amended upto date.

 

11. That the Complainant placed this application before the Learned Court and able to established his case against the accused persons during trial, before the Learned Court and therefore seeks to get justice in terms of the prescribed provisions of Law, thereof.

 

 

12. 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 upto –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 no. 870721, dated 10-06-2018, drawn on State Bank of India, Sakher Bazar Branch, West Bengal, for an amount of Rs. 20,000/- ( Rupees Twenty Thousand ) only,

2.   Bank’s Return Memo;

3.   Legal Demand Notice;

4.   Postal receipts;

5.   Track report of postal authority;

6.   Other documents.

Verification

 

I, Shri Bapi Chakraborty, being the 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 …………..2018, at the Alipore Police Court.

 

 

 

                                                                   Shri Bapi Chakraborty

Identified by me,

 

                                                                             Advocate.

Prepared in my office,

 

Advocate.

Dated :______________2018.

Place : Alipore Police Court.

 

 

 

 

 

 

 

 

A F F I D A V I T

I, Shri Bapi Chakraborty, Son of Late Subhas Chakraborty, aged about _____years, by faith Hindu, by Occupation _________________, residing at premises being no. 141, Rajpur Road, Netaji Nagar, Kolkata – 700 047, 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 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.

4.           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 : _____________2018.

Place : Alipore Police Court.

 

 

N O T A R Y

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

 

COMPLAINT CASE NO: C-     ________of 2018

 

In the matter of:

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

         

---AND---

 

In the matter of:

 

Shri Bapi Chakraborty,

                     ……COMPLAINANT

- Versus –

 

Shri Goutam Ghosal                                                                           … ACCUSED

   

                                              COURT FEES                              

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

COMPLAINT CASE NO: C-     ________of 2018

 

In the matter of:

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

         

---AND---

 

In the matter of:

 

Sri Bapi Chakraborty,

                     ……COMPLAINANT

- Versus –

Sri Goutam Ghosal,

                                                                                   … ACCUSED

       

                                              F I R I S H T I

{ Enclosures }

 

1.   Cheque no. 870721, dated 10-06-2018, drawn on State Bank of India, Sakher Bazar Branch, West Bengal, for an amount of Rs. 20,000/- ( Rupees Twenty Thousand ) only,

2.   Bank’s Return Memo;

3.   Legal Demand Notice;

4.   Postal receipts;

5.   Track report of postal authority;

6.   Other documents.

 

 

 

 

 

 

 

 

 

 

Vakalatnama

District : South 24 Parganas.

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

                                                Case No.                         of  2018.

Sri Bapi Chakraborty                                            COMPLAINANT

Versus .

Shri Goutam Ghosal,

                                                                                      ACCUSED

KNOW ALL MEN by this presents that I Shri Bapi Chakraborty, Son of Late Subhas Chakraborty, residing at premises being no. 141, Rajpur Road, Netaji Nagar, Kolkata – 700 047, 

 

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 __________ 2018       been executed

 

1.   Shri Tirthankar Roy, Advocate;

2.   Shri Ashok Kumar Singh, Advocate;

3.   Ziauddin Molla, Advocate;

4.   Shri Srijit Dey, Advocate;

5.   Shri Biplab Som, Advocate;

6.   Miss Suchitra Chakraborty, Advocate.

7.   Shri Subhrajit Mondal, Advocate.

 

Stay application in criminal revision

District : South 24 Parganas.

IN THE COURT OF THE LEARNED ADDITIONAL DISTRICT SESSION JUDGE AT BARUIPUR, SOUTH 24 PARGANAS.

{ Revisional Jurisdiction }

 

                                                          Cr. Motion no. _____________of 2017.

 

                                                          In the matter of :

An application under Section 399, and 397 of the Criminal Procedure Code’ 1973;

 

A N D

 

In the matter of :

An application for stay of the Criminal Case proceeding  in G. R. no. 997 of 2007, under Section 120B, 406, 467, 468, 469,  471, 474, and 423 of the Indian Penal Code’ 1860, before 1^st Court, Learned Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, West Bengal;

 

A N D

An application for Stay

In the matter of :

Shri Krishnapada Mondal,

                             ______Defacto Complainant / Petitioner.

 

-         Versus –

 

 

Sri Rathikanta Mondal, and Others.

_________Accused / Opposite Parties.

 

The humble Criminal Revision Petition on behalf of the Defacto Complainant / Petitioner, most respectfully;

Sheweth as under :

 

1.    That the Defacto Complainant / Petitioner preferred the present Revisional application before the Hon’ble Court, against the order dated 17-07-2017, and consequently the order dated 18-08-2017, and 19-08-2017, in Sonarpur Police Station Case no. 304 of 2007, dated 20-06-2007, ( G. R. no. 997 of 2007 ), under Section 120B, 406, 467, 468, 469,  471, 474, and 423 of the Indian Penal Code’ 1860, passed by 1^st Court, Learned Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, West Bengal.

 

2.    That on 17-07-2017, the Learned ACJM, at Baruipur, South 24 Parganas, filed for the present against the accused person Shri Nirod Baran, and consequently recorded about the death of the accused namely Radharani Kayal, Swapna Naskar, Molina Mondal, Nalina Naskar, and Debala Mondal, the date of death has not been properly recorded therein, However, the Learned ACJM, Baruipur, South 24 Parganas, and therefore the 19 ( nineteen ) accused persons out of the 25 ( twenty five ) accused persons thereby qualified for the charge as to the next stage in the criminal proceeding, and subsequently the said criminal case proceeding transferred to the Learned ACJM 1^st Court for disposal, and whereas the page of the order sheet does not contain any signature of the Learned Magistrate, and further whereas it has been appear as to 18-08-2017, and consequently cont. thereafter to the next page of the order sheet which shows as GR. 997 of 2007, Date : 17-07-2017, CR is received from GRO section for register in trial, today stands fixed for consideration of framing of charge, all the (25) accused persons is / are present and file hazira. Perused the report u/s 173 of Cr. P. C., submitting by the I.O. of this case. Hd. Ld. Advocate, for the accused person and the Ld. A.P.P. considered. It appear that there are sufficient materials to presume that the accused persons have committed the offences under Section 467/468/469/471/474/323/120B/406, of I.P.C. accordingly, the charge is framed against the accused persons for the offence under section 467/468/469/471/474/323/120B/406, of I.P.C. on a separate sheet of paper and is kept with the record. The contents of the charge was read over and explained to the accused persons to which they pleaded not guilty by saying “Nirdosh” and claimed to be tried. Fix 18-08-2017 for evidence. Issue summons upon CSW 1, 2.

 

3.    That it is pertinent  to state that the Learned Court of ACJM, Baruipur, and the 1^st Court of Learned ACJM, Baruipur, South 24 Parganas, is a same and identical Learned Court, presided over by the Learned Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, and whereas at the first part of the order dated 17-07-2017, is directed for the charge by the next date as on 18-08-2017, against the 19 ( nineteen ) accused persons, before the Learned 1^st Court of the Judicial Magistrate, at Baruipur, South 24 Parganas, and in the Second part of the Order Sheet it is awesome found that the charge has been framed against the 25 ( twenty five ) accused persons, and the next date is fixed on 18-08-2017, for evidence and issued summons on CSW 1, 2, thereof.

 

4.    That on 18-08-2017, the evidence started and completed for the CSW 1 and 2, in presence of the accused persons, as appeared from the order sheet dated 18-08-2017, and the next date is fixed for the evidence as on 19-08-2017, consequently by the Learned Magistrate, but without any direction and or issuance of summons on CSW, thereafter.

 

5.    That on 19-08-2017, it has been appeared from the order dated 19-08-2017, as (19) accused are absent by petition, no PW, to 15-09-2017, for evidence, issue fresh summons upon CSW 3 & 4. Therefore, the order dated 18-08-2017, and 19-08-2017, drawn much apprehension in the conduct of judicial proceeding by the Learned Magistrate, and therefore starting from the order dated 17-07-2017, up till the order dated 19-08-2017, the defacto complainant while in receipt of the summons, enquire about and taken the certified copy of all order which obtain on 07-09-2017, and lost his faith thereby in the Learned Court of the Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, as to get justice in terms of the prescribed provisions of the Law as well as in the factual circumstances including the circumstances of the Learned Court in dealing with the judicial proceeding, thereof, in abeyance of the interest of administration of justice, thereof.

 

6.    That the Defacto Complainant beg to states and submits that the defacto complainant reasonably and genuinely apprehend to get justice in terms of the facts and in terms of the prescribed provisions of the established law, in the 1^st Court of the Learned Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, and therefore challenging the entirety and proprietary of the order dated 17-07-2017, and consequently the order dated 18-08-2017, and 19-08-2017, passed by the Learned 1^st Court of Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, in GR no. 997 of 2007, before the Hon’ble Court, as to set aside the  order dated 17-07-2017, and consequently the order dated 18-08-2017, and 19-08-2017, passed by the Learned 1^st Court of Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, in GR no. 997 of 2007, in the interest of administration of justice.

 

7.    That the Defacto Complainant beg to states and submits that in view of the facts and the circumstances, as stated herein above in the preceeding paragraph, this defacto complainant petitioner seeks to stay on further proceeding in criminal case no. being GR no. 997 of 2007, before 1^st Court of the Learned Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, till disposal of the present revisional application, before the Hon’ble Court, in the interest of administration of justice.

 

8.    That unless the Hon’ble Court grant stay on further proceeding in criminal case no. being GR no. 997 of 2007, before 1^st Court of the Learned Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, till disposal of the present revisional application, before the Hon’ble Court, the defacto complainant will highly prejudice and suffer with irreparable loss and injury.

 

9.    That the balance of convenience and inconveniences are in favour of the defacto complainant petitioner and the opposite parties will not prejudice, in any manner, whatsoever.

 

10.That this application for stay of the further proceeding in criminal case before the Learned Lower Court, during the pendency of the present revgisional application, made bonafide in the interest administration of Fair justice.

it is, therefore, prayed that Your Honour may graciously be pleased to grant stay on further proceeding in criminal case being GR no. 997 of 2007, before the 1^st Court of Learned Additional Chief Judicial Magistrate, at Baruipur, South 24 Parganas, till the disposal the present revisional application, in the interest of administration of justice, and or to pass such other necessary order or order,  or further order or orders as your Honour may deem fit and proper for the end of justice.

And for this act of kindness, the Petitioner, as in duty bound shall ever pray.

 

 

Verification

 

 

I, Shri Krishnapada Mondal, within named Defacto Complainant Petitioner, made this revision petition, and duly verified and sign on the _____________2017, at Baruipur Criminal Court.

 

 

 

 

Shri Krishnapada Mondal,

 

Identified by me,

 

 

Advocate.

Prepared in my Chamber,

 

 

Advocate.

 

Dated : ____________________2017.

 

Place : Baruipur, South 24 Parganas.

 

 

 

 

 

 

 

 

 

 

 

 

Affidavit

 

 

I, Shri Krishnapada Mondal, Son of Late Panchanan Mondal, aged about _______years, by faith Hindu, by Occupation daily labour, residing at Village – Khurigachhi, Post Office & Police Station – Sonarpur, District – South 24 Parganas, do hereby solemnly affirm and says as follows :

 

1 : That I am the Petitioner and as such I am fully conversant with the facts of the Case.

 

2 : That the facts stated in the above petition are true to the best of my knowledge and belief, and the rests are my humble submissions before the Learned Court.

 

 

 

Deponent

 

Identified by me,

 

 

Advocate.

Prepared in my Chamber,

 

 

Advocate.

Dated : ____________________2017.

Place : Baruipur, South 24 Parganas.

 

 

N O T A R Y