Pre-summoning evidence affidavit of complainant (CW1) in cheque bounce complaint under Section 138 NI Act
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IN THE COURT OF THE LEARNED JUDICIAL MAGISTRATE, GURUGRAM, HARYANA
CRL. COMPLAINT NO. Complaint number OF 2022
IN THE MATTER OF:
Complainant company's name: COMPLAINANT
VERSUS
Accused's name: ACCUSED
DATE OF HEARING: Date of hearing (day).Date of hearing (month).Date of hearing (year)
EVIDENCE BY WAY OF AFFIDAVIT OF THE COMPLAINANT (CW1)
I, Deponent's name, aged about Deponent's age years, son/daughter of Deponent's father's or guardian's name, presently working with M/s. Deponent's company name, having its registered office at Company's registered office address, Company's registered office pin code, do hereby solemnly affirm and declare as under:
1.That I am the Authorised Representative of the Complainant Company in the captioned complaint and am competent to depose to the facts herein. That the Deponent is well conversant with the facts and circumstances of the case and is, therefore, competent to swear this Affidavit.
2.It is submitted that the Deponent Company is a company duly incorporated under the provisions of the Companies Act, 1956. That since its inception, the Deponent Company has emerged as India's leading supply chain services company, providing services through a combination of world-class infrastructure, logistics operations, and the highest standards of engineering and technological capability. That the Deponent Company enjoys a high reputation in its field of business and caters to clients in both the national and international markets.
3.It is further submitted that, at the time of entering into the transaction with the Accused, the Deponent Company was a private limited company; however, in due course, its status changed from a private limited company to a limited company. Accordingly, the captioned complaint has been filed in the name of "Complainant company's current (converted) name" and not "Complainant company's former name". Further, the cheques in question were issued in the name and favour of "Complainant company's former name". The Certificate of Conversion of the Deponent Company is Ex.CW1/1.
4.It is further submitted that the Deponent Company in the captioned case is represented by its Authorised Representative and Signatory, who is duly authorised by a Board Resolution. That the said Authorised Representative is well conversant with the facts and circumstances of the captioned case, including all the transactions and communications between the parties, and is therefore competent to institute and prosecute the captioned complaint on behalf of the Deponent Company. The Board Resolution is Ex.CW1/2.
5.It is further submitted that the Accused, namely Sh. Accused's name, approached the Deponent Company with numerous queries and sought the supply of services from the Deponent Company, and categorically represented to the Deponent Company that the Accused is the sole proprietor of "Accused's proprietorship firm name" and manages its affairs and is responsible for its operations.
6.It is further submitted that, after numerous rounds of discussions between the parties, the Accused entered into a contractual framework with the Deponent Company, and subsequently engaged the Deponent Company for the provision of various services.
7.It is further submitted that the Deponent Company, having adequate facilities, infrastructure, and manpower to provide diversified delivery services, was engaged by the Accused for the provision of various services, including but not limited to transportation services and delivery of goods services (hereinafter collectively referred to as the "Services"), as and when required by the Accused.
8.It is further submitted that, in order to govern the supply of the Services by the Deponent Company to the Accused, both parties entered into a contractual framework, and accordingly executed the "Agreement title" dated Date of agreement (day).Date of agreement (month).Date of agreement (year) (hereinafter referred to as the "Agreement"), pursuant to which the Deponent Company agreed to provide the Accused with the requisite services. The said Agreement is Ex.CW1/3.
9.It is further submitted that, in addition to the numerous other terms and conditions between the parties regarding the supply of the Services, the essential terms and conditions under the Agreement were as follows:
•For B2C Services
- The Seller (the Accused herein) shall make payment to the Service Provider (the Deponent herein) within 30 (thirty) days from the date of submission of the invoice.
- All delayed payments shall incur a liability of 18% per annum from the date the amount became due until actual payment.
•For B2B Services
- The Seller agrees to pay the undisputed bills in full within 10 (ten) days of receipt thereof.
- All delayed payments shall be made along with interest at 18% per annum from the date the amount became due until actual realisation.
10.It is further submitted that the terms and conditions of the said Agreement formed the foundation of the transaction between the parties. However, shortly after the execution of the Agreement, the Accused, on one pretext or another, chose to violate the terms and conditions thereof by delaying payment of the amounts due. That to date, the Accused has caused substantial loss to the Deponent Company by failing to pay the entire amount due.
11.It is further submitted that during the tenure of the said Agreement, the Deponent Company provided the Services to the Accused as and when required. That it is pertinent to mention that the Deponent Company provided services of the highest quality, which were duly acknowledged by the Accused without any protest or demur whatsoever. That against the services so provided, the Deponent Company raised invoices from time to time upon the Accused, seeking payment for the services rendered.
12.It is further submitted that, against the Services provided and in lieu of the invoices raised by the Deponent Company, the Accused made part payments on a running basis, with the assurance and representation that the balance amount due would be paid/remitted to the Deponent Company shortly. However, over time, the Deponent Company faced repeated difficulties in recovering the amounts due, as it had to make numerous requests for payment, and the Accused chose to remit only small amounts towards discharge of his liability. That, despite the numerous requests made by the Deponent Company, the Accused kept deferring the payment on one pretext or another, always assuring that payment would be made shortly. The invoices raised by the Deponent Company upon the Accused are Ex.CW1/4 (colly.).
13.It is further submitted that, in due course, by Due amount date (day)/Due amount date (month)/Due amount date (year), the Accused had availed services amounting to more than Rs. Amount of services availed (₹)/- (Rupees Amount of services availed in words) from the Deponent Company, and had further sought additional services for an amount of more than Rs. Amount of additional services (₹)/-. That, in discharge of his liability, the Accused handed over 5 (five) cheques to the Deponent Company, with the assurance that the balance amount would be remitted to the Deponent Company by bank transfer. The details of the said cheques are as follows:
| S. NO. | CHEQUE NO. | DATE | AMOUNT (INR) |
|---|---|---|---|
| 1. | First cheque number | First cheque date | First cheque amount (₹) |
| 2. | Second cheque number | Second cheque date | Second cheque amount (₹) |
| 3. | Third cheque number | Third cheque date | Third cheque amount (₹) |
| 4. | Fourth cheque number | Fourth cheque date | Fourth cheque amount (₹) |
| 5. | Fifth cheque number | Fifth cheque date | Fifth cheque amount (₹) |
14.It is further stated that at the time of issuance of the said cheques, the Accused had categorically represented and assured the Deponent Company that the said cheques shall be duly honoured as and when presented. That the total amount covered by the said 5 (five) post-dated cheques was Rs. Total amount of five cheques (₹)/- (INR Total amount in lakh Lakh). That the said 5 (five) cheques issued by the Accused to the Deponent Company are Ex.CW1/5 (colly.).
15.It is further stated that after the issuance of the said cheques, the Accused, on one occasion or another, requested the Deponent Company for additional time for the presentment of the said cheques, with the assurance that the Accused would be making/remitting part payments (towards the complete outstanding amount) and would accordingly inform the Deponent as to when the said cheques were to be presented in discharge of the payment of the said amount of Rs. Total cheque amount (₹).
16.It is further stated that, with the passage of time, the amount due and payable by the Accused exceeded Rs. Total amount due (₹), and accordingly, the said Accused requested the Deponent to present the said cheques over a period of time, with the representation and assurance that the said cheques, as and when presented, shall be duly honoured. That accordingly, the said cheques were presented by the Deponent.
17.It is further stated that, in terms of the mutual discussions pursuant to which the cheques were handed over, the Deponent Company presented the said cheques, being cheque bearing No. First presented cheque number for an amount of Rs. First presented cheque amount (₹)/- dated First presented cheque date (day).First presented cheque date (month).First presented cheque date (year) drawn on First cheque drawee bank, First cheque bank branch; cheque bearing No. Second presented cheque number for an amount of Rs. Second presented cheque amount (₹)/- dated Second presented cheque date (day).Second presented cheque date (month).Second presented cheque date (year) drawn on Second cheque drawee bank and branch; cheque bearing No. Third presented cheque number for an amount of Rs. Third presented cheque amount (₹)/- dated Third presented cheque date (day).Third presented cheque date (month).Third presented cheque date (year) drawn on Third cheque drawee bank and branch; cheque bearing No. Fourth presented cheque number for an amount of Rs. Fourth presented cheque amount (₹)/- dated Fourth presented cheque date drawn on Fourth cheque drawee bank and branch; and cheque bearing No. Fifth presented cheque number dated Fifth presented cheque date for an amount of Rs. Fifth presented cheque amount (₹) drawn on Fifth cheque drawee bank and branch, with its banker for encashment; however, to the utter shock and surprise of the Deponent Company, the said 5 (five) cheques were dishonoured. That despite the fact that the said cheques had been issued by the Accused towards discharge of its liability, the said cheques were dishonoured as and whenever presented.
18. It is further stated that the said (I) CHEQUE BEARING NO. First dishonoured cheque number FOR AN AMOUNT OF RS. First dishonoured cheque amount (₹)/- DATED First dishonoured cheque date DRAWN ON First cheque drawee bank and branch; (II) CHEQUE BEARING NO. Second dishonoured cheque number FOR AN AMOUNT OF RS. Second dishonoured cheque amount (₹)/- DATED Second dishonoured cheque date DRAWN ON Second cheque drawee bank and branch; (III) CHEQUE BEARING NO. Third dishonoured cheque number FOR AN AMOUNT OF RS. Third dishonoured cheque amount (₹)/- DATED Third dishonoured cheque date DRAWN ON Third cheque drawee bank and branch; AND (IV) CHEQUE BEARING NO. Fourth dishonoured cheque number DATED Fourth dishonoured cheque date FOR AN AMOUNT OF RS. Fourth dishonoured cheque amount (₹, first part),Fourth dishonoured cheque amount (₹, second part),Fourth dishonoured cheque amount (₹, third part) DRAWN ON Fourth cheque drawee bank and branch, Fourth cheque bank branch city, were dishonoured and returned to the Deponent Company with the remarks "Funds Insufficient" vide the banker's memo dated Date of dishonour with funds insufficient remarks. That the CHEQUE BEARING NO. Fifth dishonoured cheque number FOR AN AMOUNT OF RS. Fifth dishonoured cheque amount (₹)/- DATED Fifth dishonoured cheque date DRAWN ON Fifth cheque drawee bank and branch, when presented, was dishonoured and returned to the Deponent Company with the remarks "Payment Stopped by Drawer" on Date of dishonour with payment stopped remarks (day).Date of dishonour with payment stopped remarks (day).Date of dishonour with payment stopped remarks (day). That the Bank Return Memos issued by the bank to the Deponent Company pursuant to the dishonour of the said five cheques are Ex.CW1/6 (colly.).
19.It is further stated that the Accused had categorically assured and represented to the Deponent Company that the said cheques would be duly honoured as and when presented by the Deponent Company; however, the said assurance/promise was a false representation made by the Accused to the Deponent Company.
20.It is further stated that, till date, the Deponent Company has suffered substantial financial losses, including loss of opportunities consequential upon the non-payment of the amount due by the Accused. That even after the dishonour of the said cheques, the Accused assured the Deponent Company that the Accused shall make payment of the complete cheque amount to the Deponent Company within a period of approximately 7 (seven) days, and further assured the Deponent Company that it shall make part payment towards discharge of its total/outstanding liability. That despite waiting for the requisite period, the Accused failed to make payment of the cheque amount and chose to remit only part payment towards the complete outstanding amount.
21.It is further stated that the Deponent Company has been regularly attempting to contact the Accused; however, all such attempts of the Deponent Company have gone in vain. That till date, as per the ledger account of the Deponent Company, an amount of Rs. Total amount outstanding (₹)/- (INR Total amount outstanding in words) is due and payable by the Accused to the Deponent Company, being the payment due for the services rendered by the Deponent Company to the Accused. That the Ledger Account maintained by the Deponent Company is Ex.CW1/7.
22.It is further stated that the Accused has misrepresented to the Deponent Company, with dishonest intention, on several aspects, in respect of which the Deponent Company reserves its right to initiate separate proceedings. That it was to the utter shock of the Deponent Company that, despite services of the highest quality having been rendered by the Deponent Company as and when requested by the Accused, the Accused chose to resile from the terms and conditions mutually agreed between the parties.
23.It is further stated that the Deponent Company has been regularly attempting to contact the Accused and has sought to meet its/their officials/representatives on several occasions; however, all such requests of the Deponent Company have gone in vain.
24.It is further stated that the facts emerging from the foregoing clearly demonstrate that the Accused has cheated the Deponent Company in a calculated manner, with dishonest and mala fide intention and ulterior motives, and has committed the offences of cheating and criminal breach of trust, as well as the offence under Section 138 of the Negotiable Instruments Act, rendering itself liable not only to pay twice the amount of the aforesaid cheques along with compensation, but also to undergo imprisonment for a term which may extend to two (2) years as provided under the said Act, besides the other offences committed under the provisions of the Penal Code of India.
25.It is further stated that the Deponent Company issued a legal notice under Section 138 of the N.I. Act, 1881, dated Legal notice date (day).Legal notice date (month).Legal notice date (year) ("Notice"), vide email to the Accused, calling upon the Accused to make good the amount covered by the said cheques to the Deponent Company within 15 (fifteen) days of receipt of the notice; however, without success, as despite receipt of the said legal notice, the Accused chose not to make payment of the cheque amount, and instead sent a reply vide email dated Reply email date (day).Reply email date (month).Reply email date (year) ("Reply") to the Deponent Company, wherein the Accused accepted its liability for the amount due, but advanced false and frivolous excuses regarding the issuance of the said cheques, and further sought additional time from the Deponent to make payment of the complete amount due. That in response to the said Reply, the Deponent Company issued/sent an email dated Rejoinder email date (day).Rejoinder email date (month).Rejoinder email date (year) ("Rejoinder"), wherein it categorically refuted the false allegations levelled by the said Accused. That the Notice dated Legal notice date (day).Legal notice date (month).Legal notice date (year) is Ex.CW1/8, the Reply dated Reply date (day).Reply date (month).Reply date (year) is Ex.CW1/9, and the Rejoinder dated Rejoinder date (day).Rejoinder date (month).Rejoinder date (year) is Ex.CW1/10.
26.It is further stated that the conduct of the Accused makes it evident that even at the time of issuance of the said cheques, the Accused acted with mala fide intentions and deliberately failed to honour the payment of the said cheques. It is for this reason that the present complaint has been filed by the Deponent.
27.I hereby state that whatever is stated hereinabove is true and correct to the best of my knowledge and belief.
DEPONENT
VERIFICATION:
Verified at Place of verification on this Date of verification (day) day of Month and year of verification, the contents of paragraphs 1 to 27 of my above evidence affidavit having been read over to me are true and correct to the best of my knowledge and belief, and nothing material has been concealed therefrom.
DEPONENT