IN THE COURT OF HONOURABLE JUDICIAL MAGISTRATE,
FIRST CLASS & Special Court of 138 N.I Act, NAGPUR.
Criminal Complaint Case No.______/2019 Filed on :
M/s Anil International,
- VERSUS –
M/s. Mayur Sales,
DEPONENT : Shri Anil S/o Jhangaldas Chelwani.
Aged years, Occupation: - Business
Proprietor of M/s. Anil International,
Having its place of business at,
Behind Sports World, Bhandara Road,
Itwari, Nagpur-440002
AFFIDAVIT
(To be read as the examination-in-Chief of the complainant in
support of his complaint)
I the deponent named above takes oath and state on
solemn affirmation as under:-
1. I say that the complainant firm is a proprietor firm and I
am Karta of the said firm. I say that the complainant firm deals in
the wholesale business of all types of Hosiery Goods. I say that
the complainant has been carrying out the said business since
last several years and has acquired an enviable reputation in the
said area of business.
2. I say that the accused got in touch with me and informed
me that the accused is a proprietary firm and doing the business
of Hosiery Goods. I say that the accused also gave an impression
that the accused is well reputed and established person in this
field. I say that it is believing on the said representation, I did
business with the accused. I say that the accused had
approached me and requested me to supply Hosiery Goods. I say
that it is only on the said assurances and promises made by the
accused, I agreed to supply the goods, believing that the
accused is well established person as represented by the
accused. I say that with a great dismay, this proved as an
erroneous and most regrettable decision on the part of the
complainant who trusted the false promises and entered in deal
with the accused.
3. I say that on the faith and belief created by the accused
and as mutually agreed upon, I regularly started supplying the
accused with Hosiery Goods without any flaw or delay on my
part. I say that it is the accused who used to regularly call upon
me for supply of goods from time to time. I say that the accused
used to take goods from me under the name of M/s. Mayur Sales.
I say that I use to give an interest free period of 30 days to the
accused for making payment towards the goods purchased by
the accused from me. I say that it is after the said interest free
period of 30 days, I had a policy of levying an interest at the rate
of 24% per annum on the outstanding payable amount towards
the goods purchased. I say that, the accused is very well aware
of the aforesaid fact of imposition of interest beyond the interest
free period of 30 days and the accused have agreed to the same.
4. I say that the accused person after agreeing with the
terms and condition as agreed between the parties, the accused
had placed several orders with me against which I had supplied
Hosiery Goods as per the requirement given by the accused from
time to time. The details of the material which were supplied to
the accused are being summarized herein below as under:-
Sr. No: Invoice No: Date Amount
1. 861 17/10/2017 Rs. 15,008/-
2. 1174 13/11/2017 Rs. 26,940/-
1. 1227 18/11/2017 Rs. 10,406/-
2. 1557 15/12/2017 Rs.6,464/-
3. 1620 20/12/2017 Rs.4,527/-
4. 1881 11/01/2018 Rs.21,923/-
5. 1954 20/01/2018 Rs. 4,902/-
TOTAL Rs.90,170/-
AMOUNT
5. I say that I had supplied the accused with Hosiery Goods
from time to time as per the requirement of the accused. I say
that the accused had made the payment of Rs. 15,008/- on
17/01/2018, Rs. 26,940/- on 26/02/2018, Rs. 10,406/- on
13/03/2018 and amount of Rs. 18,908/- on 05/11/2018 against
the outstanding amount which is due for the goods purchased by
the accused from me. I say that thereafter the accused had
stopped making the payment which is outstanding against the
accused for the goods purchased by the accused from me from
time to time. I say that after the expiry of the credit period which
was given by me to the accused, I made several request to the
accused to make payment towards the overdue outstanding
amount but the accused avoiding the same by stating one
reason or the other.
6. I say that I made repeated reminder and request to the
accused to make the outstanding payment. I say that much to
my dismay, the accused did not respond optimistically to the
request made by me for releasing the outstanding amount due
against the accused for the goods purchased him. I say that on
the other hand the accused only gave an empty assurance to me
that the accused will make the payment soon as the accused
person is facing some financial crisis. I say that since the
accused assured me that the accused will make the payment
soon, I waited for sometime, but the accused failed to make the
payment. I say that after making the repeated request to the
accused for making the payment of the outstanding amount due
against the accused, the accused on 05/12/2018 finally issued a
cheque bearing no. 426662 drawn on State Bank of India for an
amount of Rs. 18,908/- to me with an assurance that the cheque
will be honoured when I will present it in my bank.
7. I say that believing upon the assurance given by the
accused deposited the aforesaid cheque with its bank after the
conformation made from his side and the accused had assured
that the said cheque will be honored on its presentation with my
bank. I say that but to the utmost dismay on the my part the
cheque issued by the accused was dishonoured by the bankers
of the accused on 07/12/2018, for the reasons “Funds
Insufficient” as mentioned in the Cheque Return Memo issued by
my bankers. I say that, having received the cheque return Memo
from my banker, I had immediately contacted the accused and
demanded for the payment of the outstanding amount. I say that
at that relevant time the accused apologized for the aforesaid
act on his part and asked me to present the said cheque again
after a week as due to some financial problem which the accused
was facing, he was unable to arrange the amount of cheque in
his own account.
8. I say that believing the bonafide request of the accused, I
waited for a week and again deposited the aforesaid cheque
after the confirmation made by the accused with its bank on
18/12/2018. I say that I was shocked and surprised to know that
the said cheque was once again dishonoured by the bankers of
the accused on 19/12/2018, for the same reason i.e “Funds
Insufficient” as mentioned in the Cheque Return Memo issued by
my bank. I say that immediately after the dishonoured of the
aforesaid cheque I had contacted the accused and requested him
to make the payment of the outstanding amount. I say that the
accused at that relevant point apologized for not honoring the
cheque. I say that the accused at the same time requested me to
wait for some more time as the accused was unable to arrange
the amount as guaranteed and that he will soon clear the entire
outstanding amount which is due against him. I say that the
accused further assured me that the said cheque will be honored
on its presentation with my bank. I say that I had accepted the
request made by the accused and waited for some time.
9. I say that after the conformation from the side of the
accused, I again deposited the said cheque bearing No. 426662
for an amount of Rs. 18,908/- with my bank. I say that but to the
utmost dismay on my part the cheque issued by the accused was
once again dishonoured by the bankers of the accused, on
30/01/2019 for the same reasons i.e “Funds Insufficient” as
mentioned in the Cheque Return Memo issued by my bank.
10. I say that having received the cheque return Memo from
my bank i.e Standarad Chartered Bank, Nagpur, I had
immediately contacted the accused and demanded for the
payment of the outstanding amount. I say that but the accused
did not pay any heed to my request to pay the entire outstanding
amount which is due against him. I say that it seems that the
said act of the accused was with a malafide intention to dupe my
outstanding amount and the said contention is supported from
the fact that the accused neither bothered to make the balance
outstanding amount nor settled my accounts.
11. I say that, from time to time I had contacted the accused
and also requested the accused to get the said payments
released. I say that however the accused have failed to repay the
said amount. I say that despite making repeated telephonic calls
to the accused, he had failed to respond the request made by
me. I say that it is on receipt of the memo intimating about
dishonour of cheque, I came to the unfortunate conclusion that
the accused do not have any bonafide intention to make my
payment against the cheque given by the accused and deprive
me from receiving the said amount due from the accused. I say
that I was therefore, constrained to issue the legal notice under
section 138 of Negotiable Instrument Act, as a last resort to
enable the accused persons to purge the offence committed by
making the payment due towards me.
12. I say that the accused persons are also very well aware
that issuance of the cheque, without having any intention to
make payment not only amounts to committing an offence
punishable under Section 138 of the Negotiable Instrument Act
but also amounts to Cheating and Criminal Breach of Trust
punishable under Sections 406 & 420 of I.P.C. I say that the
accused persons are fully conscious of the fact that the accused
owe money to me and the accused persons had given the said
cheque on account of money due against the goods purchased
by the accused and therefore, the accused persons are duty
bound to see that cheque issued by the accused are honoured,
however, the accused persons had failed to do so.
13. I say that after the dishonour of the cheque, I was left with
no other choice but to issue a notice sometime on 04/02/2019. I
say that by the said notice the accused persons were specifically
informed that issuance of cheque without having sufficient funds,
is a criminal offence punishable under Section 138 of the
Negotiable Instrument Act and it was the bounded duty of the
accused persons to see that the cheque issued by the accused
are honoured on presentation, however, the accused failed in his
said duties. I say that in the said notice the accused was also
expressly informed that if within 15 days of the receipt of the
said notice, the amount of dishonored cheques is not paid, I
would have no other option but to initiate prosecution under
Section 138 and 142 of the Negotiable Instrument Act. I say that
the malafide intention of the accused to harass and also
fraudulent act amounts to committing criminal breach of trust,
becomes further apparent from the fact that after receiving the
said notice accused has neither replied the same nor made any
payment to me. I say that thus, leaving the Complainant with no
other alternative than to knock the doors of this Honorable Court
for suitably punishing the accused for the illegal act committed
by him.
14. I say that the complainant submits that the circumstances
narrated here-in-above are wide enough to show the malafide
intention of the accused to misappropriate my amount in writ
large on the face of it. I say that the circumstances speaks about
the malafide intention of the accused person and action
therefore, needs to be taken under Section 138/142, of
Negotiable Instrument Act, for dishonour of cheque.
15. I say that for no fault on my part, the accused persons has
dragged me in filing the present proceeding. I say that it was
also obligatory on the part of the accused to make attempts to
ensure that the cheque issued by him is honoured as assured by
him at the time of handing of the cheque. I say that considering
the intention of the legislation behind enacting the provision
under Section 138 of Negotiable Instrument Act, I needs to be
reasonably compensated as provided under Section 357 of
Criminal Procedure Code, out of the amount of fine/penalty to be
imposed by the Honourable Court on the accused so as to
compensate the losses sustained by me. Considering the
malafide intention of the accused and the period of time for
which I was required to wait believing the assurances of the
accused. I say that thus maximum amount of compensation at
least twice of the amount of the dishonored cheques, needs to
be awarded in my favour.
16. I say that, I had annexed the list of witnesses and also had
filed the list of document as per list, and craves permission of
this Honourable Court to file more documents and examine more
witnesses as may be deemed fit in the facts and the
circumstances of the case in the interest of justice.
Hence this affidavit.
NAGPUR
DATED: 08/03/2019 DEPONENT
VERIFICATION
Verified and signed on this 8 th day of March 2019 that the
contents of above paras nos. 1 to 16 as above are true and
correct to true best of my knowledge as far as facts are
concerned and so far as legal submissions are concerned, same
are based on the legal advise given by my counsel which I
believe to be true and correct.
DEPONENT
I know and identify the deponent.
Hitesh J.Khandwani,
Advocate.
