Evidence By Way Of Affidavit During Trial Under Sections 138 And 141 Of The Negotiable Instruments Act, 18811 - Legal Draft

Precedent No. 74

EVIDENCE BY WAY OF AFFIDAVIT: DURING TRIAL UNDER SECTIONS 138 AND 141 OF

THE NEGOTIABLE INSTRUMENTS ACT, 18811

IN THE COURT OF METROPOLITAN MAGISTRATE,

Criminal Complaint No of 20

Complainant:

Vs.

Accused:

AFFIDAVIT of complainant in support of his complaint under sections 138

and 141 of the Negotiable Instruments Act, 1881

Shri , S/o , aged years, residing

in

The deponent abovenamed hereby solemnly affirms and declares as under:

1. That the deponent herein is the complainant in the above matter

and being fully conversant with the facts and circumstances of the case,

stands competent to swear to this affidavit as follows. The deponent

will be referred to as the complainant hereinafter.

1. That the accused No. 1 is a company incorporated under the

Companies Act, 1956 having its respective offices as shown in the title

of this complainant and accused Nos. 2 to 8 are its directors of which

Accused No. 3 is now reported to have expired as per the endorsement

given by Postman on the returned envelope of statutory notice.

1. That shorn of unnecessary details except which are necessary for

the disposal of the present case of dishonour of cheques it is submitted

that

in the month of the complainant was introduced by , S/

o , aged years, residing in to the

accused No. 1 having its registered office at , through its

directors Shri (MD), Shri , Shri

Shri Smt and Smt

1. That the purpose of introduction of the complainant by Shri to

the said persons was to facilitate the purchase of a part of property,

situated at , for the complainant and his family members which

was purportedly to be developed by the said company through its stated

directors.

1. That with the aid and connivance and persuasion of Shri , the

aforesaid directors of the said Company were absolutely comfortable in

reposing all confidence in the complainant.

1. For the purpose of carrying out the bargain, meetings used to be

candidly

planned and kept at good joints at at the behest of

abovestated directors and Shri

1. That ultimately, the parties concluded their bargain for a sum of

Rs.

for the purchase of part of the aforesaid property, specifications

of which were more particularly described in the Bayana Receipt

executed at , with the payment of Rs vide

cheque No cleared on , drawn on

which was issued from M/s , a family concern of the

complainant. On the handing over of the stated cheque, the Bayana

1. It may be mentioned here that in criminal cases, pre-summoning

evidence is also given before the commencement of the trial. Therefore,

submission of evidence by way of affidavit presupposes that an affidavit

has already been submitted alongwith the original complaint. In other

words, to avoid delay, affidavit of complainant by way of pre-summoning

evidence may be given at the time of filing of complaint itself.

Receipt was executed in the name of the complainant and Shri

, being property-broker, also signed the same and the same

was further witnessed by his two sons as stated above, namely Shri

and Shri It would not be totally irrelevant to state that

further payments were to be made through cheque only.

1. That having cleared the abovestated cheque, Shri

categorically refused to take the balance payments through cheques and

said that the same shall be acceptable to the company only in cash.

Accordingly, the complainant arranged money in cash and paid the same to

the directors of the company always in the presence of the said Shri

and used to take endorsements on the reverse side of the said

Bayana receipt. In other words, the complainant paid an amount of Rs.

of which Rs was paid through cheque and rest in cash

upto

1. That it is pertinent to mention here that Shri and his two sons

together with the abovestated directors had categorically and

specifically agreed to handover and deliver the possession of the

property to the

complainant anytime before However, the accused parties

showed their incapability to deliver the said property as per schedule

because of some legal disputes they were facing and sought from the

complainant the enlargement of time for delivery of possession of

property by a year, which the complainant flatly refused. The reason of

delaying the deal and refusal thereon on the part of the complainant was

precisely that the property market was at its peak at that point in time

and the accused persons had complete knowledge of the fact that if the

deal got cancelled once, they could conveniently and comfortably delay

or even cancel the refund of payment to the complainant. At the same

time, they could sell the said property at a much higher price. Thus,

the opposite party intended to travel in both the boats at the cost of

the complainant.

1. That after an altercation between the complainant and the opposite

party,the opposite party constituting each one of the above persons

arranged

for a further and last meeting at , to settle all the disputes

between the complainant and the opposite party.

1. In the aforesaid meeting, the opposite party suddenly showed

its willingness to return the entire money to the complainant to which

the complainant agreed, feeling hooked in the deal with no other option

left with him. It was agreed between the complainant and the opposite

parties that atleast half the money be paid instantly to the complainant

and the rest was agreed to be payable in installments in the next couple

of months. In a bid to avoid quarrels and unending litigation, the

complainant agreed. Looking back in retrospect, it is more than apparent

that the aforesaid arrangement was calculatedly done by the opposite

party to take the benefit of the situation specially and deliberately

created by the opposite party itself in connivance with each other and

which was a result of a well-planned conspiracy.

1. Whatever may it be, the complainant was asked to handover the

aforementioned receipt and was issued two cheques of Rs

each issued in favour of complainant's sister-in-law, Smt The said

cheques were bearing No , dated , and No , dated

, drawn on Bank Ltd., issued under the seal of the said

company and signed by Shri Further cheques for the remaining

amount were agreed and assured to be given by the opposite party to the

complainant earliest in point of time and the same was deferred for a

few days.

1. However, the opposite party directed the complainant to present the

saidcheques only after receiving confirmation from the opposite party.

Theopposite party did not confirm the presentment of the cheque No.

, as stated above and the same lost its legal validity of six

months also.

1. That after long persuasion and struggle, the complainant was

ultimatelyhandedover some more cheques of the following description,

most ofwhich have been dishonoured for the reason of 'insufficiency of

funds' or'account closed'. The following cheques were also issued from

theaccount of the opposite party and were drawn on Bank:

No.Cheque No.AmountDatedFavour

of1.ARs......,20...Complainant2.BRs......,20...-do-3.CRs......,20...-do-

1. DRs......,20...-do-5.ERs......,20...-do-6.FRs......,20...-do-7.GRs....

..,20...-do-8.HRs......,20...-do-9.IRs......,20...-do-10.JRs......,20...

-do-11.KRs......,20...-do-12.LRs......,20...-do-13.MRs......,20...-do-14

.NRs......,20...-do-15.0Rs......,20...-do-16.PRs......,20...-do-17.QRs..

....,20...-do-18.RRs......,20...-do-19.SRs......,20...-do-20.TRs......,2

1. ..-do-21.URs......,20...-do-22.VRs......,20...-do-23.wRs......,20...-d

o-15. That of the above 23 tabled cheques, cheques at item Nos. 1 to 18

have been dishonoured for the reason of insufficiency of funds, except

item No. 12, which is dishonoured for the reason of 'account closed' and

cheques at item Nos. 19 to 23 as tabled above have been duly honoured.

1. It is further pertinent to mention here that the above cheques

at item Nos. 1 to 18 and item No. 23 were issued together with their

respective receipts showing and acknowledging their issuance against

discharge of debt and legal liability.

1. That the hard money of the complainant and his other family

members has been duped by the abovestated persons with an intention to

defraud and cheat the complainant.

1. The complainant was cheated firstly when he was deceived for

handing

over of the cheque of Rs and further when he parted with money

totalling Rs to the opposite party.

1. The complainant secondly was cheated when the opposite party

calculatedly took back the Bayana Receipt from the complainant and

handed over some cheques which were dishonoured and further when the

complainant was delivered remaining cheques which ultimately have been

dishonoured for the reason of 'insufficiency of funds' and even 'account

closed' as spelled out above in greater detail. Had the complainant not

been deceived of the bad intentions of non-delivery of possession and

execution of the sale-deeds of the property or dishonour of cheques of

refunds amount then the complainant would not firstly have made the

payment and secondly would not have delivered back Bayana Receipt to the

opposite party. Thus, the complainant has been cheated by each one of

the opposite party at various levels and at various stages.

1. However, the present complaint is with regard to three cheques

of the description as mentioned at item Nos. 4, 9 under the above table

of cheques issued in favour of the complainant by the accused persons in

the name of accused No. 1 signed by accused No. 2. It is submitted that

the stated cheques have been drawn on On their due

presentment, the said three cheques have been dishonoured for the

reason of 'Insufficient Funds' vide memo dated and ;

'insufficient Funds' vide memos dated and ; and

'insufficient Funds' vide memos dated and respectively.

Cheques are Exb. CW1/1, 15 and 29 with their memos Exb. CW1/2, 3, 16,

17, 30, and 31 respectively. Acknowledgments for issuance of cheques are

Exb. CW1/13, 27, and 41 respectively for each of the three

stated cheques respectively. Payment of Rs from the side of

complainant to accused is Mark CW1/A.

1. On their dishonour, three separate legal notices were sent for each

stated

cheque and the said notices were dated was dispatched to the

accused persons through registered post on Notice has thus

been duly served to the opposite party. A notice addressed to accused

No. 4 has been returned with the postal remarks 'expired', which are Ex.

CW1/14, 28 and 42 respectively. Neither the payment was tendered nor was

given to the complainant till the filing of the complaint. The cause of

action entirely arose at The complaint is within time. Notices

are Exb. CW1/4, 18 and 32 respectively and the Postal receipts for

Registered post are Ex. CW1/5 to 12, 19 to 26 and 33 to 40 respectively

for sending of three respective notices.

1. That, accused No. 2 is the signatory of the cheques and the accused

Nos. 3 to 8 were directly involved in the day-to-day affairs of the

accused No. 1 and were responsible for the conducting of the business of

the accused No. 1. It is further stated that all the stated directors of

accused No. 1 took active part in the deal and each one of them was

responsible for the conduct of deal and carrying out the bargain between

the parties. 23. Thus all accused persons have made themselves liable to

be convicted

and punished for the offence mentioned in the title of the complaint. It

is therefore, respectfully prayed in the interest of justice that all

the accused persons may kindly be convicted for the stated offence and

sentenced to the maximum of two years imprisonment each and double the

amount of fine may kindly be directed to be paid to the complainant as

compensation. Any other relief may also be granted to the complainant,

as may be found fit and proper in the facts and circumstances of the

case.

Sd./ Deponent.

Verification

Verified at on this the of 20 that the

contents of the above affidavit are true and correct to the best of

knowledge, belief and information of the deponent and nothing material

has been concealed therefrom.

Sd./ Deponent.

Solemnly affirmed and signed before me by the deponent, who is

personallyknown to me, on this the day of ,20

Sd./

Counsel for the deponent.

Note: Affidavit to be attested by the appropriate authority prescribed

under law. Prayer may be deleted from affidavit. Affidavit should

preferably be in 'first person'.