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Draft Notice U/S 138 of NIA


IN THE COURT OF LD. METROPOLITAN MAGISTRATES
23rd COURT AT ESPLANADE, MUMBAI
CASE No. OF 2006
TRADE 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 ) COMPLAINANT
V/s
1. 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. ) ACCUSED
Charge 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. A

1. 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 28.10.2000. 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. B

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-1

Ex. D

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.
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. F

Ex. G

Ex. G

11. 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 16.11.2006.
12. 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 asExhibit 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 21.12.2006 bearing no. 184265 for Rs.
7,29,70,000/-.
13. 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 me
Advocate for the Complainant
MbsinghDAssociatesHemangiDr. S. Mittal 8 complaint Final.doc
LIST OF WITNESSES
1.

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 Company

5.

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

6.

Any other witnesses/documents with the permission of this Honble Court.


Advocate for the Complainant
IN THE COURT OF LD. METROPOLITAN MAGISTRATES
23rd COURT AT ESPLANADE, MUMBAI

CASE No. OF 2006


TRADE 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 ) COMPLAINANT
V/s
1.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. ) ACCUSED
VAKALATNAMA
I, 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 2006.
(Complainant)

ACCEPTED
Haresh Jagtiani & Associates,
Advocates

205, Neelkanth
98, Marine Drive
Mumbai 400 002.
N.B. We are not the members of an advocates welfare fund.
IN THE COURT OF LD. METROPOLITAN MAGISTRATES
23rd COURT AT ESPLANADE, MUMBAI
CASE No. OF 2006
TRADE WINGS HOTELS LIMITED COMPLAINANT
V/s
1. ABK Enterprises Pvt. Ltd.
2. DR. AJIT B. KERKAR ACCUSED
INDEX

Particulars

Sr. No.

IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE


TIS HAZARI COURTS, DELHI

Complaint Case No.............. of 20

In the matter of:


...
Through its Director...........................

VERSUS

.Complainant

1. M/s ( company).......................................
2. Managing Director...................................
3. Finance Director.......................................
4. Director....................................................

.Accused

POLICE STATION: _____________

Complaint under section 190 of the Criminal procedure code, 1973 for
taking cognizance of the offense committed under sections 138, 141 of the
Negotiable Instruments Act, 1881.

Most respectfully submitted

1. The complainant is a company incorporated under the provisions of the


Companies Act, 1956 having its registered office at ..... and the complainant is
having its branch office in Delhi at the above address. The Complainant Company
disengaged in the business of purchase and sale of ...... The present complaint is
filed through Mr........... who is competent to file this complaint on behalf of the
Company.

2. The accused No.1 is a company incorporated under the provisions of the


companies Act. 1956 having its registered office in Delhi at above address . The
accused No.1 company is engaged in business of purchase & sale of .....

3. The accused NO 2 is the Managing Director, the accused No. 3 is the Finance
Director and the accused No.3 is the Director of the accused no.1 company and
wholly responsible for the conduct of the accused company. The affairs of the
accused No. 1 company are managed by accused no.2 to 4 and as such they are in
control of the affairs of the accused No. 1 company & liable of all the facts and
deeds committed by the accused No.1 company.

4. The accused No.2 placed an order with the Complainant company on dated... or
the supply of ... The complainant company supplied the above machines on
Dated......and the accused No.1 had taken delivery of the machines on dated
.........vide delivery challan No. dated..... The complainant company had raised an
Invoice No...............dated................for Rs............ (Rs...........) on the accused No.1
company.

5. That the accused No.1 company through the hands of accused No. 3 issued a
cheque drawn on........ bearing No. ......... dated......for Rs. In discharge of the above
liability.

6. That the complainant company presented the above said cheque for collection
through its bankers.............. & to its dismay found that the cheque was returned
unpaid on dated............ for want of sufficient funds in the A/c of the accused.

7. That the complainant had immediately sent a legal notice on dated........to the
accused company demanding therein the payment of Rs......... within 15 days of the
receipt of the notice. The above notice of demand was received by the accused on
dated.........

8. That the accused had failed to make payment of Rs......with in 15 days from the
date of receipt of statutory notice.

9. That the issuance of cheque by the accused without having sufficient funds in the
bank is an act which has been done deliberately, mischievously & malafidely with
an intention to cheat the complainant company. The accused was aware of the fact
that on presentation the cheque would never be honored because of insufficiency of
funds in their A/c.

10. The complainant submit that it had presented the cheque within the time limit
prescribed by the Negotiable Instruments Act 1881 and the dishonored cheque was
issued by the accused by the accused without maintaining sufficient funds in the
account further the accused have failed to make the payment of the sum covered
under the dishonored cheque within 15 days from the date of receipt of the notice
of demands. Therefore, all the accused have committed the offense under section
138 of the Negotiable Instruments Act, 1881.

11. That the complainant company had sent a registered legal notice to the accused
No.1 company within the time limit prescribed by the Negotiable Instruments Act,
1881 and the accused had not made the payment within 15 days of the receipt of
the notice thereof. The above said cheque was cheque was issued in Delhi and
returned unpaid from the complainant's Bank in Delhi, hence this Hon'ble court has
jurisdiction to take cognizance of the offense.

PRAYER

It is, therefore most humbly prayed that this Hon'ble court may be pleased to take
the complaint on record and punish the accused according to law and in the interest
of justice.

New Delhi
Dated.............

Complainant

Counsel for the Complainant

LIST OF DOCUMENTS FILED

1. Cheque No.... Dated.......for.......Rs.........drawn on bank.........(In original)


2. Copy of the legal notice dated.........sent to the accused.
3. Postal proof of dispatch of the above legal notice(In original)
4. Postal Acknowledgment cards received back from the accused ( In original)

LIST OF WITNESSES
1. Mr. ___________ S/o ________________ R/o _________________________
2. Mr. ___________ S/o ________________ R/o _________________________

3. Mr. ___________ S/o ________________ R/o _________________________

Following is the Bombay Amendment. Court Fees is the State subject. Hence, check the local
amendments.
Bombay Court-fees (Amendment) Act, 2008
An Act further to amend the Bombay Court-fees Act, 1959. WHEREAS it is expedient further to
amend the Bombay Court-fees Act, 1959, for the purposes hereinafter appearing; it is hereby
enacted in the Fifty-ninth Year of the Republic of India as follows:.
1. Short title and commencement.- (2) This Act .may be called the Bombay Court-fees
(Amendment) Act, 2008.
(2) It shall come into force on such date, as the State Government may, by notification in the
Official Gazette, appoint.
2. Amendment of section 43 of Bom. XXXVI of 1959.- In section 43 of the Bombay Court-fees
Act, (hereinafter referred to as "the principal Act"), in sub-section (2), (i) after the word "petitioners", the words and figures "complainants under section 138 of the
Negotiable Instruments Act, 1881", shall be inserted;
(ii) after the word "petitions," the words and figures "complaints under section 138 of the
Negotiable Instruments Act, 1881," shall be inserted;
(iii) after the words "in suits" the words and figures "complaints under section 138 of the
Negotiable Instruments Act, 1881", shall be inserted.
3. Amendment of Schedule I of Bom. XXXVI of 1959.- In Schedule I to the Principal Act, after
Article 17, the following article shall be inserted, namely :"18. Application or petition containing complaint or charge of an offence under section 138 of the
Negotiable Instruments Act, 1881. (A) When the amount of cheque does not exceed ten
thousand rupees. Two hundred rupees.
(B) When the amount of cheque exceeds ten thousand rupees. Two hundred rupees for every ten
thousand rupees or part thereof subject to the maximum of rupees one lakh fifty thousand.".

Another Format:
IN THE COURT OF CHIEF JUDICIAL MAGISTRATE
AT_____________

Criminal Complaint No._______of ________.


__________________

Complainant.
Versus
__________________
Accused/Respdt.

Complaint Under section 138 and 142 of the Negotiable Instrument


Act, 1881.

Respectfully Showeth:1.
That the accused issued one cheque bearing No. ________
dated________
for
a
sum
of
Rs.
_________drawn
on
______________________ for a lawful valuable consideration in
discharge of his liability in favour of the complainant.
2.

That the complainant presented the said cheque lastly on


__________ which was returned unpaid by drawee Bank vide returning
Memo dated ________ for the reasons `Insufficient Funds`. The said
cheque was presented within its validity period and stood dishonoured on
presentation.

3.

That the complainant got a notice issued through his counsel


dated ______ under registered AD cover and UPC to the accused
demanding the amount of the dishonored cheques within 15 days of the

receipt thereof which was duly served upon him on (Date) ________. It
is submitted that the Registered cover containing the notice was received
back as unclaimed as the accused has deliberately avoided the service
of the notice, however the notice sent through UPC stood served upon
the accused on (Date)_______, the copy of notice with postal receipt/
UPC and envelop containing notice is filed with the complaint.
4.

That the accused person has not cared to make the payment of
the amount of dishonored cheques to the complainant within 15 days as
required under the law as demanded in the notice.

5.

That the cause of action for filing the complaint arose to the
complainant with in the jurisdiction of this learned court when the
accused failed to make the payment of the cheques in dispute to the
complainant with in 15 days of the receipt of notice.

6.

That the accused is guilty of an offence under section 138 of the


Negotiable Instrument Act, 1881 and is liable to be punished under
section 142 of the said Act.
It is, therefore, prayed that the accused person be proceeded against
and punished in accordance with law as envisaged under section 142 of the
Negotiable Instrument Act in accordance with law.

Complainant
Through
Advocates
Place: __________
Dated: _________

List of Documents attached:-

1.

Original dishonored cheque No. ______ dated ________ for Rs._______


drawn on _________________
2.
3.
4.

Original returning Memos of the drawee Bank dated ________


Copy of Notice dated _________.

Postal
notice.

and UPC receipt dated _________ and envelop containing

List Witnesses:1. Complainant.


2. Concerned officers of the _____________________ with the records
pertaining to the _____________________ of the accused regarding
dishonoured cheque No._________ for Rs. _______.

AFFIDAVIT

I (Name)_________ s/o Shri ________ aged _______


years, r/o________ do hereby solemnly affirm and declare on oath that
the contents of the accompanied application from Para 1 to 6 are true and

correct to my personal knowledge and belief and that nothing false is


stated therein and also nothing material is concealed there from.
I further declare and verify on oath that the contents of this
affidavit are true and correct and nothing material is concealed there
from. Verified at ______________ on this _______ day of_________.

DEPONENT.

Procedure For filing Complaint Under Section


138 Negotiable Instrument Act
a)Under provisions of negotiable instruments act.sec.138 a legal notice on
behalf of complainant is issued to the defaulter whose cheque is dishonored.
It should be issued within 15 days of dishonor of cheque by RPAD. All facts
including the nature of transaction, amount of loan and or any other legally
enforceable debt against which the said cheque was issued and the date of
deposit in bank and date of dishonor of cheque should be mentioned in the
notice.
b) The person who has issued cheque is directed to make the payment of
amount of dishonored cheque within 15 days. In case the said payment is
made within 15 days of service of notice then the matter ends.
c) But in case the said payment is not made within 15 days then the
complainant has to file a criminal case in the court within 30 days from the
expiry of notice period of 15 days.
d) The court will hear arguments of complainant/ advocate for complainant
and issue process under section 138 of N.I. Act.
e) The summons are sent and served through police station where accused is
residing.

f) Kindly note that in N.I. Act. Sec.138 cases, police is limited to only service
of summons and in case accused remains absent on court date after service
of summons then only warrant is sent to police station to produce accused in
court.
g) But it is observed in several cases that accused persons are harassed by
concerned persons who are directed to serve notice/warrant.
h) Hence it is advisable that accused should not be afraid of this court case
and regularly attend court dates so that warrant will not be issued and further
unnecessary harassment will be prevented.
i) Kindly note that offence under section 138 of N.I. Act is a bailable offence
as the punishment provided for said offence is two years.
j) Accused has to submit surety with all surety documents including
ownership documents of house or land owned by surety, his address proof
including ration card, election identity card, photo and address proof of surety
and accused. On receiving summons from the court the accused and surety
should remain present in court with all abovementioned documents and court
will accept the surety and on signing bonds by accused and surety, the bail
will be granted and accused will be released by court.
k) Then the complainant will file the affidavit for his evidence with all original
documents in support of his complaint. This is called exam in chief of
complainant. Then accused/his advocate will cross examine the complainant.
l) Complainant can submit additional witnesses in support of complaint.
m) Then once witnesses of Complainant are over then statement of accused
is recorded under sec.313 of Crpc .Accused will be asked to give reply to the
questions and allegations against him.
n) Then witnesses of accused to prove his innocence will be produced and
the evidence will be recorded by the court.
o) Last stage is of arguments of advocate of complainant and argument of
advocate of accused
p) Court will pass the Judgment. In case accused is acquitted then matter
ends. But in case accused is convicted then immediately accused should
submit bail application and give surety and pray for time to appeal to sessions

court. Court will direct him to deposit fine as per judgment in the court
immediately then he will be released. He should appeal to sessions court
within one month from the date of judgment of lower court.
q) Criminal appeal with application for suspension of sentence and for bail will
be given hearing by the dist and sessions court and on furnishing surety as
per directions of court including deposit of some amount towards
compensation ordered as per judgment the accused will be released on bail.
r). Kindly note that the dispute may go on from district and sessions court to
high court and then to supreme court.
s). Kindly note that there is amendment in the negotiable instruments act.
The offence is made compoundable. Hence in case the matter is settled
between the parties , then on an application in the court , the court may allow
to compound the case and close the case.
t) Kindly note that these are general guidelines for knowledge and reference
of all concerned who are harassed by the complainants by forcing the
borrowers to issue blank signed cheques in advance at the time of sanction of
loan.
u) If a complainant withdraws the case under sec.138 of the NI Act, court fee
will be refunded as:

In India, the Negotiable Instruments Act regulates commercial transactions


which take place through cheques, promissory notes and bills of exchange.
The Maharashtra government announced in a gazette notification in May
2011 that a claim for refund of court fees can be made after the withdrawal of
the complaints for the cases, which are filed under section 138 of the
Negotiable Instruments Act, 1881.
According to the Maharashtra government resolution (GR), the state
government, in exercise of its powers conferred by section 43(2) of the
Bombay Court Fees Act, 1959 will provide part of the court fees paid by the
complainant under article 18 of schedule I, appended to the Act.
Such refund will be paid to the complainant under two broad circumstances
and conditions.
o First, under section 138 of the Negotiable Instruments Act, 1881, a refund of
50% of the total court fees will be made when the complainant withdraws a
complaint, or when the offence was compounded, before framing of

particulars/charges, provided the claim is made within one year from the date
of withdrawal of the complaint.
o Similarly, 25% of the court fee will be refunded provided the complaint is
withdrawn, or the offence is compounded, after farming of particulars/charges,
or any subsequent stages of the complaint. Here again, a claim has to be
made within a year.
Supreme Court in a Landmark Judgment delivered last week has issued guidelines for speedy disposal of
cases under Section 138, Negotiable Instruments Act.
A two Judge Bench comprising of Justice K.S. Radhakrishnan and Justice Vikramajit Sen was dealing
with a Writ Petition filed by the Indian Banks Association (IBA) and Punjab National Bank under of India
seeking appropriate guidelines for the speedy disposal of cases under Section 138 of the Negotiable
Instruments Act.
Bench disposed of the petition directing all the Criminal Courts in the country dealing with Section 138
cases to follow the procedures for speedy and expeditious disposal of cases falling under Section 138.
Guidelines are as follows,
1. Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138
of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit,
and the affidavit and the documents, if any, are found to be in order, take cognizance and direct
issuance of summons.
2. MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be
properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in
appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the
accused. For notice of appearance, a short date is fixed. If the summons is received back un-served,
immediate follow up action be taken.
3. Court may indicate in the summon that if the accused makes an application for compounding of
offences at the first hearing of the case and, if such an application is made, Court may pass appropriate
orders at the earliest.
4. Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance
during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of
defence and fix the case for defence evidence, unless an application is made by the accused under
Section 145(2) for re-calling a witness for cross-examination.
5. The Court concerned must ensure that examination-in-chief, cross- examination and re-examination of
the complainant must be conducted within three months of assigning the case. The Court has option of

accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and
accused must be available for cross- examination as and when there is direction to this effect by the
Court.
Another two Judge Bench has issued guidelines for the expeditious trial and disposal of Rape Cases.
Read the Guidelines here

Format of Affidavit for and on behalf of the


Complainant by way of evidence in case of Criminal
Complaint Under section 138 of Negotiable
Instruments Act.
In some courts at the time
of filing criminal complaint
under
section
138
of
Negotiable Instruments Act
(read with section 141 in
case of Companies) against
return
of
cheque,
an
affidavit
regarding
evidence needs to be filed
by the complainant (Not in
all
courts).
Format
of
complaint s given here
under.

Draft Format of Evidence by way of affidavit for and on behalf of the


Complainant (Not necessary in some courts)
IN THE COURT OF _____________________________
COMPLAINT NO. ___________ OF 2013

IN THE MATTER OF:


Mr. _______________
COMPLAINANT
VERSUS
Mr. ________________
ACCUSED
EVIDENCE BY WAY OF AFFIDAVIT FOR AND ON BEHALF OF THE COMPLAINANT
Affidavit of Mr. __________________ aged ____years, the resident of
______________________________.
I, the above named deponent, on solemn oath do hereby state, declare and affirm as
under:
1. That I am the Complainant and am competent to file the present Complaint before
this Honble Court.
2. That I say the Complainant had extended credit facility of Rs.___________ /- to the
Accused. The said credit facility was repayable as per the cheques issued by the
Accused.
3.
That I say that the Accused had issued Cheque No.
___________dated _____________for Rs. ________________, drawn on
______________ in my favour towards discharge of his above said
liability.The above cheque was drawn on cheques drawn
______________________ is exhibited as EX CW1/A.
4. That I say that the above cheques, on presentation, was dishonoured by the bank
of the Accused vide returning memo dated ____________stating the reason to be
Funds Insufficient. The said Returning Memo is exhibited as EX- CW1/B.
5. That I say that on account of the dishonor of the said cheques, the complainant
had served a legal notice dated _____________upon the accused person. A Copy of
the notice is exhibited as EX CW1/C. The Postal Receipt exhibited as EX-CW1/D.
6. That I say that consequent to the non payment of the cheques amount so
demanded by the complainant within the statutory period, the Complainant has
filed the present complaint, which is well within limitation. The limitation

document is exhibited as EX CW1/E.


7. That I say that the complainant not filed any complaint in any other court which is
pending in respect of the transaction involved in the present matter.
8. That I say that in view of the facts the accused be summoned and tried as per law.
9. That I say that I close my pre-summoning evidence.
DEPONENT
VERIFICATION
Verified at New Delhi on this _____day of ______2013, that the contents of the above
affidavit are true and correct to the best of my knowledge and belief based on the
records maintained by the Institute in normal course of business. No part of it is false
and nothing material has been concealed therefrom.
DEPONENT

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