S 138 Of Nia - Legal Draft

IN THE COURT OF LD. METROPOLITAN

MAGISTRATES23rd COURT AT ESPLANADE, MUMBAICASE No. OF

2006TRADE

WINGS HOTELS LIMITED )Having

its Corporate Office at )18/20

Dubash Marg, Kalaghoda, )Fort,

Mumbai 400 023 )Having

its Registered Office at )6

Mascarenhas building )Mahatma

Gandhi Road, )Panaji,

Goa 403 001 )through

Mr. Ajay Vageria )its

Authorised Representative ) COMPLAINANTV/s1.

ABK Enterprises Pvt. Ltd. )Having

its registered office at )Chandramukhi

Building (Basement), )Nariman

Point, Mumbai 400 0021. )2.

Dr. Ajit B. Kerkar )[Director

and Authorized Signatory] )of

ABK Enterprises Pvt. Ltd. )Chandramukhi

Building (Basement), )Nariman

Point, Mumbai 400 0021. ) ACCUSEDCharge U/s.138 r/w

Sec.141 of the Negotiable Instruments Act, 1881.MAY

IT PLEASE YOUR WORSHIP:The

Complainant through Ajay Vageria, the authorized representative of the

complainant company abovenamed, hereby states on solemn affirmation as under:Ex.

A1. The Complainant

states that it has duly authorized Ajay Vageria to file this complaint

against the accused and that he is conversant with the facts of this case. He

is aware of the day to day operations of the Complainant company including

the transaction in question and therefore able and competent to depose to the

same for and on behalf of the Complainant company. Hereto annexed and marked

as Exhibit A is the copy of the board resolution authorizing him to

file this complaint.2. The Complainant is

a company incorporated under the Companies Act, 1956 having its corporate

office at 18/20, K. Dubash Marg, Fort Mumbai 400 023 and having its

registered office at 6 Mascarenhas Building, Mahatma Gandhi Road, Panaji, Goa

403 001 carrying on the business of Hotel and Restaurants.3. The Accused No. 1

is a Private Limited Company. The Accused No. 2 is a director of Accused No.1

company and is also the authorized signatory of the cheque in question issued

on behalf of Accused No. 1. Accused No. 2 is in charge of the company

and is responsible for the day to day affairs of the said company.4. The Complainant

states that under an MOU dated 26.4.2000 between Accused No.2, acting on

behalf of Tulip Hotels Pvt. Ltd. (THPL) and Dr. Shailendra Mittal, wherein

the Accused No. 2 had agreed that THPL will buy 50% of the equity capital of

the Complainant by itself or through its nominees within 135 days of the

Management of Bogmalo Beach Resort (hereinafter referred to as the said

Hotel) being taken over by a Joint Venture consisting of THPL and Trade

Wings equally. The Complainant states that the management of the said Hotel

was handed over on 15.6.2006. Pursuant to the MOU a Shareholders Agreement

dated 9th June 2000 was entered into between THPL , Trade Wings

Ltd, the Complainant, Dr. Shailendra Mittal and Accused No. 2. Under the MOU

the price of the equity shares of the Complainant was agreed to be in the

range of 27 to 30 crores and THPL agreed to purchase 50% of the equity

capital of the Complainant through itself or its nominees by

1. 10.2000. The Complainant craves leave to refer to and rely upon the

said MOU and shareholders agreement as and when required by this Honble

Court.5. The Complainant

states that the Accused No.2 had issued a cheque on behalf of Accused No.1 to

the Complainant for a sum of Rs.9,79,70,000/- (Rupees Nine Crores Seventy

Nine Lakhs Seventy Thousand only) being the amount towards part payment of

50% of the equity capital of the Complainant as agreed under the MOU. The

amount owing to the Complainant on the date of the said cheque was far in

excess of Rs. 9,79,70,000/- (Rupees Nine Crores Seventy Nine Lakhs Seventy

Thousand only) and though not germane to this complaint, the Accused made

certain payments viz. Rs. 30,00,000/- (Rupees Thirty lakhs only) vide a pay

order dated 3.11.2006 to Trade Wings Ltd. and Rs. 1,20,00,000/- (Rupees one

crore twenty lakhs only) to the Complainant vide a cheque dated 4.11.2006.

These payments do not in any way diminish the liability of the accused in

respect of the cheque for Rs. 9,79,70,000/- (Rupees Nine Crores Seventy Nine

Lakhs Seventy Thousand only) which is subject matter of this Complaint. The

Accused No. 1 issued the cheque on behalf of THPL as a nominee of the said

THPL and hence has assumed the liability of the said THPL.Ex.

B1.2.3.4.5.6. The Complainant

states that the Accused No.1 and 2 in part discharge of the liability under

the MOU towards the Complainant had issued a cheque bearing No.184252 dated

1. 11.2006 for Rs.9,79,70,000/- (Rupees Nine Crores Seventy Nine Lakhs Seventy

Thousand only) drawn on Industrial Development Bank of India Ltd., Mittal

Court, C Wing, Nariman Point, Mumbai 400 021 in favour of the

Complainant. Annexed hereto and marked as Exhibit B is the

copy of the dishonoured cheque dated 1.11.2006.7. The Complainant

states that the cheque was presented by the Complainant for encashment with

the Complainants banker viz. the National Cooperative Bank Ltd., Nariman

Point Branch, Mumbai on 31.10.2006 after banking hours so that it could be

presented to the bankers of the Accused on 1.11.2006. Subsequently the

Complainant received a faxed letter dated 30.10.2006 on 31.10.2006 from the

Accused No.2 requesting the Complainant not to deposit the cheque due to

delay caused by an inadvertent reason resulting in difficulty in arranging

the funds. In fact the letter further goes on to state that they shall make

efforts to pay a partial amount before the end of November 2006. The

Complainant however was not obliged to comply with the requisition contained

in the said letter as the same had been sent dishonestly to merely stall for

time. On 1.11.2006 the said cheque was returned dishonoured by a cheque

return memo dated 1.11.2006 of Industrial Development Bank of India Ltd. with

the remark Refer to Drawer. Annexed hereto and marked as Exhibit

C and C-1 are copies of the letter dated 30.10.2006 and the

cheque return memo dated 1.11.2006 respectively.Ex.

C & C-11.2.3.4.5.6.7.1.2.3.4.5.6.7.8. The Complainant

received the intimation about the dishonour of the cheque from their banker

on 1.11.2006.9. As the said cheque

was dishonoured the Complainant issued the statutory notice dated 15.11.2006

through its advocates Dave & Girish & Co. to Accused Nos.1 and 2

calling upon them to make payment of the dishonoured cheque amounting to

Rs.9,79,70,000/- within 15 days from the date of receipt of the said

notice. Annexed hereto and marked as Exhibit D is the copy of

the statutory notice dated 15.11.2006.Ex.

D1.2.3.4.5.6.7.8.9.10. The Complainant

states that the said notice was sent to the Accused Nos.1 and 2 by registered

A/D post and Under Certificate of Posting on 15.11.2006. Annexed hereto

and marked as Exhibit E collectively are the copies of the postal

receipts of Registered A/D post and Under Certificate of Posting.Ex.

F11.

The

Accused Nos.1 and 2 received the notice dated 15.11.2006 on 16.11.2006.

Annexed hereto and marked as Exhibit F are the postal

acknowledgement receipts which were duly acknowledged by the Accused on

1. 11.2006.Ex.

G12. Although the

Accused Nos.1 and 2 have received the notice dated 15.11.2006 they have

failed to make the entire payment to the Complainant which the Accused is

liable to make within 15 days from the date of receipt of the notice. The

Accused No.1 addressed a letter dated 1.12.2006, with a post-dated cheque for

Rs.7,29,70,000/- (Rupees seven crores twenty-nine lakhs and seventy thousand)

enclosed, purportedly in reply to the Complainants notice dated 15.11.2006

in which it was falsely contended, inter alia, that the Complainants notice

is premature, that the payment was in full settlement of the Accuseds

liability towards the Complainant, that certain further payments were made to

the Complainant in respect of the amount of the dishonoured cheque. The Complainant

says and submits that the issuance of a fresh post-dated cheque for a reduced

amount in no way constitutes compliance with the Complainants notice u/s 138

of the Negotiable Instruments Act, 1881 and also says and submits that the

so-called defense taken by the Accused in their reply dated 1.12.2006 is

false and irrelevant and is also a means to stall for time. Annexed hereto

and marked as Exhibit G is a copy of the letter dated 1.12.2006 sent

by the Accused No.1. The Complainant adds that though the said notice makes

mention of a pay order of Rs. 1,00,00,000/- (Rupees one crore only) given to

Mr. Om Navani and Mr. Ashok Advani, no copy of such pay order was enclosed in

the said letter thus demonstrating the dishonesty of the Accused. In fact all

the annexures mentioned in the letter are missing except the cheque dated

1. 12.2006 bearing no. 184265 for Rs. 7,29,70,000/-.Ex.

G13.

The

complainants cause of action arose on 1.12.2006 i.e. 15 days from the

receipt of the notice dated 15.11.2006.14.

The

cheque was issued by the Accused in favour of the Complainant towards the

part discharge of the liability of THPL towards the Complainant under the MOU

and since the Accused No.2 is the authorized signatory of the cheque in

question and is responsible for the day to day affairs of the business of

Accused No.1 and hence is responsible for the said payment due to the

Complainant. The cheque was issued by Accused No. 2, on behalf of THPL,

from the account maintained by the Accused No.1 with its banker for the

payment of the amount to the Complainant in part discharge of the liability

of THPL and since the cheque was dishonoured for the reasons stated

hereinabove the Accused have committed an offence under section 138 read with

section 141 of the Negotiable Instruments Act, 1881, as amended. The

Accused Nos.1 and 2 are thus liable to be prosecuted for the offence under

section 138 read with section 141 of the Negotiable Instruments Act, 1881, as

amended.15.

The

complaint has been filed within the period of limitation as prescribed under

the Negotiable Instruments Act, 1881 as amended, i.e. within one month from

the date on which the cause of action arose.16.

The

Complainant has appended a list witnesses that it proposes to examine to

prove its case and also craves leave to refer to and rely upon the documents

mentioned in the complaint.17.

The

Complainant states that the Complainants bank as well as the Accused No. 1s

bank are situated within the jurisdiction of this Honorable Court and

therefore this Honorable Court has jurisdiction to entertain, try and dispose

of the above complaint.In

the circumstances aforesaid, the Accused above named are guilty of offences

u/s. 138 r/w. 141 of the Negotiable Instruments Act and pray that they be dealt

with according to law.For

this Act of kindness, the Complainant in duty bound shall for ever pray.Solemnly

affirmed at Mumbai on )this

8th day of December, 2006 ) For

Trade Wings Hotels Ltd.Before meAdvocate

for the ComplainantMbsinghDAssociatesHemangiDr.

S. Mittal 8 complaint Final.docLIST

OF WITNESSES1.

Mr.

Ajay Vageria, the authorized representative of the Complainant.2.

Representative

of the Complainant Banker, The National Cooperative Bank Ltd., Nariman Point,

Mumbai.3.

Representative

of the Accused Banker, The Industrial Development Bank of India, Nariman Point,

Mumbai.4.

Dr.

Shailendra Mittal, Director of the Complainant Company5.

Mr.

Om Navani, Director Tulip Hotels Pvt. Ltd.6.

Any

other witnesses/documents with the permission of this Honble Court.Advocate for the ComplainantIN THE COURT OF LD. METROPOLITAN

MAGISTRATES23rd COURT AT ESPLANADE, MUMBAICASE No. OF

2006TRADE

WINGS HOTELS LIMITED )Having

its Corporate Office at )18/20

Dubash Marg, Kalaghoda, )Fort,

Mumbai 400 023 )Having

its Registered Office at )6

Mascarenhas building, )Mahatma

Gandhi Road, )Panaji,

Goa 403 001 )through

Mr. Ajay Vageria )its

Authorised Representative ) COMPLAINANTV/s1.ABK

Enterprises Pvt. Ltd. )Having

its registered office at )Chandramukhi

Building (Basement), )Nariman

Point, Mumbai 400 0021. )2.Dr.

Ajit B. Kerkar )[Director

and Authorized Signatory] )of

ABK Enterprises Pvt. Ltd. )Chandramukhi

Building (Basement), )Nariman

Point, Mumbai 400 0021. ) ACCUSEDVAKALATNAMAI, Ajay Vageria, the authorized representative of the complainant abovenamed,

do hereby appoint, nominate and authorize M/s. Haresh Jagtiani &

Associates, Advocates to act, appear and plead on the Complainants behalf in

the above matter.In witness whereof, I have signed this writing on this 8th day of December

1. (Complainant)ACCEPTEDHaresh

Jagtiani & Associates,Advocates205,

Neelkanth98,

Marine DriveMumbai

400 002.N.B.

We are not the members of an advocates welfare fund.IN THE COURT OF LD. METROPOLITAN

MAGISTRATES23rd COURT AT ESPLANADE, MUMBAICASE No. OF

2006TRADE

WINGS HOTELS LIMITED COMPLAINANTV/s1.

ABK Enterprises Pvt. Ltd.2.

DR. AJIT B. KERKAR ACCUSEDI N

D E XSr.

No.Particulars