Criminal complaint under Section 138 NI Act for cheque dishonour with index, memo of parties and supporting affidavits
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IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE, ROHINI COURTS, DISTRICT NORTH WEST, DELHI
CRIMINAL COMPLAINT NO. Complaint number OF 2019
IN THE MATTER OF:-
Complainant's name: COMPLAINANT
VERSUS
Accused's name: ACCUSED
(P.S.: Police station)
INDEX
| S.No. | PARTICULARS | PAGES |
|---|---|---|
| 1. | MEMO OF PARTIES | A – |
| 2. | COMPLAINT UNDER SECTION 138 OF THE N.I. ACT, 1881 | 1 – |
| 3. | AFFIDAVIT IN SUPPORT |
| 4. | LIST OF WITNESSES |
| 5. | LIST OF DOCUMENTS |
| 6. | VAKALATNAMA |
| 7. | EVIDENCE BY WAY OF AFFIDAVIT |
DELHICOMPLAINANT
THROUGH: Complainant's name, Advocate
DATED: Filing date of the complaint
Complainant's name, Advocate, Ch. Complainant's house number, Complainant's street or locality, Delhi-Complainant's PIN code.
IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE, ROHINI COURTS, DISTRICT NORTH WEST, DELHI
CRIMINAL COMPLAINT NO. Complaint number OF 2019
IN THE MATTER OF:-
Complainant's name: COMPLAINANT
VERSUS
Accused's name: ACCUSED
(P.S.: Police station)
MEMO OF PARTIES
**Complainant's name: COMPLAINANT**
VERSUS
**Accused's name: ACCUSED**
DELHICOMPLAINANT
THROUGH: Complainant's name, Advocate
DATED: Filing date of the complaint
Complainant's name, Advocate, Ch. Complainant's house number, Complainant's street or locality, Delhi-Complainant's PIN code.
IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE, ROHINI COURTS, DISTRICT NORTH WEST, DELHI
CRIMINAL COMPLAINT NO. Complaint number OF 2019
IN THE MATTER OF:-
**Complainant's name: COMPLAINANT**
VERSUS
**Accused's name: ACCUSED**
(P.S.: Police station)
COMPLAINT UNDER SECTIONS 138 AND 142 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881, AS AMENDED BY ACT 66 OF 1988, FOR DISHONOUR OF CHEQUE BEARING NO. Dishonoured cheque number DATED Cheque date (day).Cheque date (month).Cheque date (year) FOR AN AMOUNT OF RS. Amount of cheque (₹)/- (RUPEES Amount of cheque in words ONLY), DRAWN ON Bank on which cheque was drawn, Branch of the drawn bank BRANCH, DELHI-PIN code of the drawn bank's branch, IN FAVOUR OF THE COMPLAINANT
MOST RESPECTFULLY SHOWETH:-
THE FACTS LEADING TO THE FILING OF THE INSTANT COMPLAINT ARE AS FOLLOWS:-
1.That the complainant is a peace-loving and law-abiding citizen of India. Aggrieved by the acts of the accused, the complainant has approached this Hon'ble Court for redressal of the grievances meted out to him by the accused.
2.That the accused is an old acquaintance of the complainant, and they have known each other for approximately Period of acquaintance between complainant and accused, a fact well known to the accused.
3.That the accused was in dire need of money and, in the month of Month and year of loan request, requested the complainant to extend a friendly loan of Rs. Loan amount agreed (₹)/-. Considering their long-standing friendship and the accused's repeated requests, the complainant somehow arranged and paid a sum of Rs. Loan amount actually paid (₹)/- to the accused on Loan payment date (day).Loan payment date (month).Loan payment date (year), as desired and requested by the accused. On receiving the said amount, the accused handed over to the complainant a hand-written acknowledgement and a signed cheque bearing no. First cheque number drawn on Bank on which cheque was drawn, Branch of the drawn bank Branch, Delhi.
4.That despite the passage of sufficient time (more than Period after loan before reissuance (e.g., four years)), the accused did not pay a single penny to the complainant. Owing to his bona fide needs and requirements, the complainant requested the accused to repay the amount, but the accused repeatedly sought time to make payment of the loan amount. Upon the repeated requests of the complainant, in the month of Month of cheque reissuance, Year of cheque reissuance, the accused came to the complainant, took back the earlier cheque, filled in the date Reissued cheque date (day).Reissued cheque date (month).Reissued cheque date (year) and the amount of Rs. Amount of reissued cheque (₹), inclusive of interest, and handed over the said cheque to the complainant in discharge of his debts and liabilities towards the complainant. The details of the said cheque are as under:-
| S.NO. | CHEQUE NO. | DATED | AMOUNT |
|---|---|---|---|
| 1. | Reissued cheque number | Reissued cheque date (day).Reissued cheque date (month).Reissued cheque date (year) | RS. Amount of reissued cheque (₹) |
5.That even at the time of issuance of the cheque and while handing it over to the complainant, the accused categorically represented to the complainant that the cheque would be duly encashed by his banker whenever presented for encashment. The accused clearly represented at that time, and gave the impression and understanding to the complainant, that the cheque would be honoured by his banker.
6.That, within the validity of the aforesaid cheque, the complainant presented it for negotiation and for crediting the proceeds thereof to his account through his banker, i.e., Complainant's bank name Ltd., Complainant's bank branch Branch, Delhi. However, to the utter surprise of the complainant, the above-mentioned cheque was not honoured and was returned dishonoured by his banker, with the remarks "Account Dormant", vide the banker's memo dated Dishonour memo date (day).Dishonour memo date (month).Dishonour memo date (year). The said information was conveyed to the complainant by his bankers. The complainant immediately informed the accused of the fact of dishonour of the cheque and asked him to make payment of the aforesaid amount, but the accused failed to make payment of the dishonoured cheque amount.
7.That, after receiving back the cheque in question dishonoured, the complainant endeavoured to contact the accused on a number of occasions to apprise him of the fact of the dishonour of the cheque; however, the accused paid no heed to the requests of the complainant and, instead, put off the matter on one pretext or the other. The payment of the cheque amount therefore remains due from the accused.
8.That the accused dealt with the complainant and handed over the cheque in discharge of his liability. It appears that, since inception, the accused has misrepresented to the complainant, with dishonest intentions, on several aspects, in respect of which the complainant reserves his right to initiate separate proceedings as warranted under law.
9.That the facts emerging from the above clearly show that the accused has cheated the complainant cleverly, with dishonest and mala fide intention and ulterior motives, and has committed the offences of cheating and criminal breach of trust, as also the offence under Section 138 of the Negotiable Instruments Act, 1881, rendering himself liable not only to pay twice the amount of the aforesaid cheque as compensation, but also to undergo imprisonment for a term extending up to two years as provided under the Act, besides the other offences committed under the provisions enumerated in the Penal Code of India.
10.That the complainant issued a notice under Sections 138 and 142 of the N.I. Act, 1881, dated Legal notice date (day).Legal notice date (month).Legal notice date (year), dispatched on Notice dispatch date (day).Notice dispatch date (month).Notice dispatch date (year) to the accused by registered post, calling upon the accused to make good the amount of the said cheque to the complainant within fifteen (15) days of receipt of the notice.
11.That the accused issued the cheque fully knowing that he did not have sufficient funds in his account, with a view to cheating the complainant, thereby attracting the provisions of Sections 138 and 142 of the Negotiable Instruments Act, 1881, as also Section 420 of the Indian Penal Code.
12.That, from the conduct of the accused, it is evident that even at the time of issuance of the cheque, the accused harboured mala fide intentions and intentionally failed to honour the said cheque. The accused therefore acted with mala fide and malicious intention even at the time of issuance of the cheque, causing wrongful loss to the complainant and wrongful gain to himself, thereby committing an offence punishable under Section 420 of the Indian Penal Code.
13.That the accused has neither made good the amount of the said cheque nor has cared to reply to the legal notice issued by the complainant. The complainant is, therefore, filing the present complaint under Sections 138, 141 & 142 of the Negotiable Instruments Act, 1881 read with Section 420 of the I.P.C. for initiation of criminal proceedings against the accused.
14.That this Hon'ble Court has jurisdiction to entertain the present complaint, inasmuch as the process of dishonour of the cheque took place at Delhi, within the jurisdiction of this Court. The branch of the complainant's bank is located at Complainant's bank branch address, Delhi, i.e., Police Station Police station of bank branch, Delhi, which falls within the jurisdiction of this Hon'ble Court.
15.That the present complaint has been filed within the time prescribed by law, inasmuch as the legal notice was dispatched on Notice dispatch date (day).Notice dispatch date (month).Notice dispatch date (year) and was duly served upon the accused on Notice service date (day).Notice service date (month).Notice service date (year), as borne out by the tracking report of India Post, and no payment was made within the statutory period of fifteen days thereafter. The present complaint has been filed within one month of the expiry of the said period of fifteen days.
16.That the complainant has filed a list of all relevant documents which are within the power and possession of the complainant. The complainant further seeks liberty to file such other documents as may be found necessary at a subsequent stage of the proceedings.
17.That the complainant has filed a list of witnesses and reserves the right to file an additional list of witnesses, if found necessary, during the course of the proceedings.
P R A Y E R
It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to take cognizance of the present complaint against the accused above-named under the relevant provisions of law and:
1.Issue process against the accused under the relevant provisions of law.
2.Initiate criminal proceedings against the accused under Sections 138, 141 & 142 of the Negotiable Instruments Act, 1881, and Section 420 of the Indian Penal Code.
3.Direct the accused to pay to the complainant twice the amount mentioned in the cheque.
4.Pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
DELHICOMPLAINANT
THROUGH
DATED
Complainant's name
ADVOCATE
Ch. Complainant's house number,
Complainant's street or locality,
Delhi-Complainant's PIN code.
IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, ROHINI COURTS, DIST. NORTH WEST, DELHI.
CRIMINAL COMPLAINT NO. Complaint number OF Complaint year.
IN THE MATTER OF:
Complainant's name: COMPLAINANT
VERSUS
Accused's name: ACCUSED
(P.S.: Police station)
LIST OF WITNESSES
1.The complainant himself.
2.The concerned official of the complainant's bank.
3.The concerned official of the accused's bank.
4.The concerned officials of the Postal Department.
5.Any other witnesses who may be sought to be summoned.
DELHICOMPLAINANT
THROUGH
DATED
Complainant's name
ADVOCATE
Ch. Complainant's house number,
Complainant's street or locality,
Delhi-Complainant's PIN code.
IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, ROHINI COURTS, DIST. NORTH WEST, DELHI.
CRIMINAL COMPLAINT NO. Complaint number OF Complaint year.
IN THE MATTER OF:
Complainant's name: COMPLAINANT
VERSUS
Accused's name: ACCUSED
(P.S.: Police station)
LIST OF DOCUMENTS
1.Acknowledgement / Receipt dated Acknowledgement date (day).Acknowledgement date (month).Acknowledgement date (year).
2.Cheque bearing No. as under:
| S.No. | Cheque No. | Dated | Amount |
|---|---|---|---|
| 1. | Dishonoured cheque number | Cheque date (day).Cheque date (month).Cheque date (year) | Rs. Amount of cheque (₹)/- |
3.Bank returning memo issued by the Accused's bank name, Accused's bank branch Branch, Delhi, dated Dishonour memo date (day).Dishonour memo date (month).Dishonour memo date (year), in respect of the aforesaid cheque.
4.Legal notice dated Legal notice date (day).Legal notice date (month).Legal notice date (year), dispatched on Notice dispatch date (day).Notice dispatch date (month).Notice dispatch date (year), issued by the counsel for the complainant under Sections 138, 141 & 142 of the Negotiable Instruments Act, 1881 read with Section 420 of the IPC.
5.Postal receipt dated Postal receipt date (day).Postal receipt date (month).Postal receipt date (year) of the notice dated Legal notice date (day).Legal notice date (month).Legal notice date (year) sent by the counsel for the complainant, along with the delivery report of the speed post.
6.Any other documents, with the permission of this Hon'ble Court, at a later stage.
DELHICOMPLAINANT
THROUGH
DATED
Complainant's name
ADVOCATE
Ch. Complainant's house number,
Complainant's street or locality,
Delhi-Complainant's PIN code.
IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, ROHINI COURTS, DIST. NORTH WEST, DELHI.
CRIMINAL COMPLAINT NO. Complaint number OF Complaint year.
IN THE MATTER OF:
Complainant's name: COMPLAINANT
VERSUS
Accused's name: ACCUSED
AFFIDAVIT
Affidavit of Deponent's name, S/o Sh. Deponent's father's name, R/o Deponent's address, Delhi-Deponent's pincode, who solemnly affirms and declares as under:
1.That I am the complainant in the above-mentioned case and am thoroughly conversant with the facts and circumstances thereof, and am competent to swear this affidavit.
2.That no other complaint has been filed before any court under Sections 138/141 of the N.I. Act read with Section 420 of the IPC in respect of cheque bearing No. Dishonoured cheque number for an amount of Rs. Amount of cheque (₹)/- dated Cheque date (day).Cheque date (month).Cheque date (year) drawn on Accused's bank name, Accused's bank branch Branch, Delhi-Deponent's pincode.
DEPONENT
VERIFICATION:
Verified at Delhi on this Date of affidavit verification day of Month and year of affidavit verification, that the contents of the above affidavit are true and correct to my knowledge, no part of it is false, and nothing material has been concealed therefrom.
DEPONENT
IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, ROHINI COURTS, DIST. NORTH WEST, DELHI.
CRIMINAL COMPLAINT NO. Complaint number OF Complaint year.
IN THE MATTER OF:
Complainant's name: COMPLAINANT
VERSUS
Accused's name: ACCUSED
AFFIDAVIT OF EVIDENCE OF THE COMPLAINANT
Affidavit of Deponent's name, S/o Sh. Deponent's father's name, R/o Deponent's address, who solemnly affirms and declares as under:
1.That I am the complainant in the above-mentioned case and am thoroughly conversant with the facts and circumstances thereof, and am competent to swear this affidavit.
2.That the deponent is a peace-loving and law-abiding citizen of India. The deponent, aggrieved by the acts of the accused, has approached this Hon'ble Court for redressal of the grievances meted out to him by the accused.
3.That the accused is an old acquaintance of the deponent, and they have known each other for approximately Years of acquaintance between deponent and accused years, a fact well known to the accused.
4.That the accused, being in dire need of money, requested the deponent for a friendly loan of Rs. Loan amount agreed (₹)/- in the month of Month of loan advance. The deponent, considering their old friendship and the accused's repeated requests, somehow arranged and paid a sum of Rs. Loan amount actually paid (₹)/- to the accused on Loan payment date (day).Loan payment date (month).Loan payment date (year), as desired and requested by the accused, and the accused handed over a hand-written acknowledgement and a signed cheque bearing No. First cheque number, drawn on the Accused's bank branch Branch, Delhi, to the deponent. The Acknowledgement / Receipt dated Acknowledgement date (day).Acknowledgement date (month).Acknowledgement date (year) is Ex. CW1/1.
4.That despite the lapse of sufficient time (more than four years), the accused did not pay even a single penny towards the said amount. The deponent, on account of his bona fide needs and requirements, requested the accused to repay the amount, but the accused repeatedly sought time to make payment of the loan amount. Upon the repeated requests of the deponent, in the month of Month of chequre reissuance, Year of cheque reissuance, the accused approached the deponent, took back the earlier cheque, filled in the date Reissued cheque date (day).Reissued cheque date (month).Reissued cheque date (year) and the amount of Rs.Amount of cheque (₹) (inclusive of interest), and handed over the said cheque to the deponent in discharge of his debts and liabilities towards the deponent. The details of the said cheque are as under:-
S.NO.CHEQUE NO. DATED AMOUNT
1.Reissued cheque number Reissued cheque date (day).Reissued cheque date (month).Reissued cheque date (year) Rs.Amount of cheque (₹)
Cheque bearing no.Dishonoured cheque number dated Cheque date (day).Cheque date (month).Cheque date (year) is Ex.Cw1/2.
6.That even at the time of issuance of the cheque and while handing over the same to the deponent, the accused categorically represented to the deponent that the cheque would be duly encashed by his banker whenever presented for encashment. The accused clearly represented at that time and gave the deponent the impression and understanding that the cheque would be honoured by the banker.
7.That the deponent, within the period of validity of the aforesaid cheque, presented it for negotiation and for crediting the proceeds thereof in his account through his banker, namely Complainant's bank name Ltd., Complainant's bank branch Branch, Delhi. However, to the utter surprise of the deponent, the above-mentioned cheque was not honoured and was returned dishonoured by his banker, with the remarks "Account Dormant", vide the banker's memo dated Dishonour memo date (day).Dishonour memo date (month).Dishonour memo date (year), and such information was conveyed to the deponent by his bankers. The deponent immediately informed the accused of the fact of dishonour of the cheque and called upon him to make payment of the aforesaid amount, but the accused failed to make payment of the dishonoured cheque amount. Returning memo dated Returning memo date (day).Returning memo date (month).Returning memo date (year) is Ex.Cw1/3.
8.That after receiving back the cheque in question dishonoured, the deponent attempted on several occasions to contact the accused to apprise him of the fact of dishonour of the cheque; however, the accused paid no heed to the requests of the deponent and, on one pretext or the other, put off the matter. The payment of the cheque amount therefore still remains due from the accused.
9.That the accused dealt with the deponent and handed over the cheque in discharge of his liability, and it appears that from the very inception the accused misrepresented to the deponent, with dishonest intentions, on several aspects, for which the deponent reserves his right to initiate separate action as warranted under law.
10.That the axiomatic facts emerging from the above clearly show that the accused has cheated the deponent in a calculated manner, with dishonest and mala fide intention and ulterior motives, and has committed the offences of cheating and breach of trust, as well as an offence under Section 138 of the Negotiable Instruments Act, rendering himself liable not only to pay double the amount of the aforesaid cheque as compensation but also to undergo imprisonment for a term extending up to two years as provided under the Act, besides the other offences committed under the provisions enumerated in the Indian Penal Code.
11.That the deponent issued a notice under Sections 138 and 142 of the N.I. Act, 1881 dated Legal notice date (day).Legal notice date (month).Legal notice date (year), dispatched on Notice dispatch date (day).Notice dispatch date (month).Notice dispatch date (year), to the accused by registered post, calling upon the accused to make good the amount under the said cheque to the deponent within 15 days of receipt of the notice. Legal notice dated Legal notice date (day).Legal notice date (month).Legal notice date (year) is Ex.Cw1/4.
12.That the accused issued the cheque fully knowing that he did not have sufficient funds in his account, with a view to cheat the deponent, thereby attracting the provisions of Sections 138 and 142 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code.
13.That it is evident from the conduct of the accused that even at the time of issuance of the cheque, the accused was actuated by mala fide intention, and the accused intentionally failed to honour the said cheque. The accused therefore acted with mala fide and malicious intention from the very inception, causing wrongful loss to the deponent and wrongful gain to himself, thereby committing an offence punishable under Section 420 of the Indian Penal Code.
14.That the accused has neither made good the amount under the said cheque nor has he bothered to reply to the notice issued by the deponent. The deponent is, therefore, filing the present complaint under Sections 138, 141 and 142 of the Negotiable Instruments Act read with Section 420 of the I.P.C. for initiating criminal proceedings against the accused.
15.That this Hon'ble Court has jurisdiction to entertain the present complaint, inasmuch as the process of dishonour took place in Delhi and within the area of this Court. The branch of the deponent's bank is located at Complainant's bank branch address, Delhi, i.e., Police Station Police station of bank branch, Delhi, which falls within the jurisdiction of this Hon'ble Court.
16.That the present complaint is filed within the time stipulated by law, inasmuch as the notice was dispatched on Notice dispatch date (day).Notice dispatch date (month).Notice dispatch date (year) and was duly served on Notice service date (day).Notice service date (month).Notice service date (year), as per the tracking report of India Post, and no payment was received within the next 15 days. The present complaint is being filed within one month of the expiry of the said grace period of 15 days. Postal receipt is annexed as Ex.Cw-1/5 and the tracking status of the said postal receipt is Ex.Cw-1/6.
17.That it is submitted that the complaint filed by the deponent is correct, and the accused be tried and punished in accordance with the provisions of law by this Hon'ble Court.
18.That the statements made by the deponent above are true and correct.
DEPONENT
VERIFICATION :-
Verified at Delhi on this Date of verification of evidence affidavit day of Verification month, Verification year that the contents of paragraphs 1 to 18 of my evidence by way of affidavit are true and correct to my knowledge; no part of it is false and nothing material has been concealed therefrom.
DEPONENT