IN THE COURT OF DISTRICT AND SESSION JUDGE, PATIALA

HOUSE COURT, NEW DELHI

CR REVISION NO. Of 2022

IN THE MATTER OF:

GULAM MUSTAFA ……PETITIONER

VERSUS

MOHD. YUSUF ……..RESPONDENT

INDEX
Sr. No. Particulars Pages

1. Memo Of Parties
2 Revision Petition alongwith affidavit
3. ANNEXURE-A
Copy of Impugned order dated 24.09.2022
4. ANNEXURE-B
Copy Daily Office Dairy Dated 24.10.2022
5. ANNEXURE-C
Copy of Daily Office Diary Dated 29.11.2022
6. Application for exemption from filing Certified Copy of
Impugned order dated 23.11.2022

7. Vakalatnama

Filed By:

Counsel For Petitioner

Sachin Mittal
SMA LAWYERS
Place: New Delhi Off: C-2/132,JanakPuri,
Date: New Delhi-110058
Ph:42664353,981016692
E-mail: [email protected]
 IN THE COURT OF DISTRICT AND SESSION JUDGE, PATIALA
HOUSE COURT, NEW DELHI

CR REVISION NO. Of 2022

IN THE MATTER OF:

CUBE SOFT PVT. LTD. …… PETITIONER

VERSUS

M/S SAPPHIRE RISE AND ANR. …….. RESPONDENT

MEMO OF PARTIES
 CUBE SOFTWARE (P) LTD
B-83,MANSAROVER GARDEN,
NEW DELHI-110015 …….. PETITIONER

VERSUS

1. M/S SAPPHIRE RISE

4TH FLOOR DWARKA DR. R.P ROAD
MULUND,WEST MUMBAI
MUMBAI-40080 …….. RESPONDENT No.1

2. ASHISH
PROPRIETOR OF M/S SAPPHIRE RISE
4TH FLOOR DWARKA DR.R.P ROAD,
MULUND,WEST MUMBAI
MUMBAI-40080 …….. RESPONDENT No.2

BOTH RESPONDENTS ALSO AT:

BUILDING NO.2082,BASEMENT,
BEHIND SHIVAM COLOR LAB, CIVIL LINE,
INFRONT OF NAGAR NIGAM, JHANSI-28400,U.P

Through

Counsel For Petitioner

Sachin Mittal
PLACE: NEW DELHI SMA Lawyers
DATE: Off: C-2/132, JanakPuri,
New Delhi- 110058
Ph.:42664353,9810166992
E-mail: [email protected]
 IN THE COURT OF DISTRICT AND SESSION JUDGE, PATIALA
HOUSE COURT, NEW DELHI

CR REVISION NO. Of 2022

IN THE MATTER OF:

CUBE SOFT PVT. LTD. …… PETITIONER

VERSUS

M/S SAPPHIRE RISE AND ANR. …….. RESPONDENTS

REVISON PETITION UNDER SECTION 397 READ WITH SECTION 399 of

Cr.P.C. AGAINST FINAL ORDER DATED 23.11.2021 PASSED BY MR. SAHIL
KHURMI , LD MM-02, PATIALA HOUSE COURT IN CRIMINAL COMPLAINT
NO. 15817/2017 TITLED AS “CUBE SOFTWARE PVT. LTD VERSUS M/S
DSPPHIRE RISE AND ANR”.

MOST RESPECTFULLY SHOWETH:

 1. The instant Revision Petition u/s 397 r/w 399 of the Cr.P.C. is being
preferred by the Petitioner against the order dated 23.11.2021 passed by the
Court of Mr. Sahil Khurmi, Ld MM-02, Patiala House Court in Criminal
complaint No. 15817/2017 titled as “CUBE SOFTWARE PVT. LTD
VERSUS M/S DSPPHIRE RISE AND ANR” Hereinafter referred to as
“Impugned Order”).By way of the said impugned order the Ld. M.M. has
dismissed the Criminal Complaint of the Petitioner U/s 138 of the
Negotiable Instrument Act, 1881 seeking summoning and Punishing of
Respondents for offence committed u/s 138 of the Negotiable Instrument
Act, 1881..Copy of Impugned order dated 23.11.2021 is hereby Annexed as
Annexure-P1

FACTUAL MATRIX OF THE CASE:

1. That the Petitioner is a Private Limited Company having its head office at B-

83, Mansarover Garden, New Delhi-110015 and engaged in the business of

software development. The present complaint is being filed and instituted

through Mr. Kamal Kumar Varshney, IT Support Engineer, who has been

authorized by the Petitioner company by its board resolution dated 26.11.2016

to sign, file, institute and prosecute the present complaint and he is well

conversant with the facts and circumstances of the present case and is otherwise

also competent to institute, file prosecute and conduct the proceeding of present

complaint.
2. That the Respondent No.1 is a proprietorship firm and is a distributor/stockist

of various kinds of products and the principal place of business of the

Respondent No.1 firm is situated at 4th,floor Dwarka Dr.R.P Road, Mulund,

West Mumbai-400080. Respondent No.2 is the sole proprietor/ authorized

signatory of the Respondent No.1firm and is incharge of and responsible for the

day to day conduct, affairs and business of the Respondent No.1firm.

3. That on being approached by Respondent No.2, the PetitionerCompany agreed

to sell the desired software and related hardware to the Respondent No.2 for a

total sale consideration amount Rs. 11,35,000/- excluding all taxes. The

agreement was made on 30.10.2014. Respondent No.1was not in a condition to

pay full amount in one go and requested the first party to receive amount of

sale consideration in instalments. The Petitioner has acceded to the request of

the second party on the terms and conditions appearing herein after.

4. That vide Challan No. CH/CSPL-2014-15/0561 dated 1.11.2014 the said

products were delivered to the Respondents and vide Invoice No. SI/2014-

15/0210 dated 01.11.2014, thePetitioner Company installed the products at the

premises of the Respondents.

5. That against the said liability and in order to repay the said amount, the

Respondent No.2under his signature and on behalf of Respondent No.1had

provided a cheque bearing No. 028789 for Rs. 8,00,000/- dated 19.09.2016

drawn on NKGSB Co-Op Bank Ltd., Alps Heights, Off Dr. R.P. Road, Mulund

(West), Mumbai-400080, with the assurance that the said cheques as and when

presented would be enchased so that the financial liability towards the

Petitioner can be satisfied.

6. That at the time of presentment of the said cheque no. 028789 for encashment

to its banker, the Petitioner vide Email informed the Respondents that the said

cheque no. 028789 dated 19.09.2016 has been deposited with the bank and

requested the accused to ensure that the said cheque would get cleared and

honoured.

7. That on 20.09.2016 the Petitioner deposited cheque no.028789 for Rs.

8,00,000/- to its banker Syndicate Bank, Pusa Road, Branch New Delhi,

however, to the utter shock and surprise of the Petitioner the said cheque was

returned dishonoured by the Petitioner Bank vide cheque returning Memos

dated 21.09.2016 with remarks “INSUFFICIENT FUNDS”.

8. That instead of giving the amount in a big instalment, the Respondents

requested for small instalments and at the request of the Respondents and

against the pre-existing liability and in order to repay the said amount, the

Respondent No.2under his signature and on behalf of Respondent No.1had

 provided nine separate cheques, the detail whereof is mentioned hereunder,

with the assurance that the said cheques as and when presented would be

enchased so that the financial liability towards the Petitioner can be satisfied.

The details of the said cheques is as under:

Cheque Date Amount Bank Bank Branch

No.

(In Rs.)

033207 06.12.2016 45,000/- NKGSB Alps Heights,

Co-Op Off Dr. R.P.
033208 16.12.2016 45,000/-
Bank Road,
033209 27.12.2016 45,000/- Ltd. Mulund
(West),
033210 07.01.2017 45,000/- Mumbai-
033211 17.01.2017 45,000/- 400080

033212 27.01.2017 45,000/-

033213 06.02.2017 45,000/-

033214 16.02.2017 45,000/-

033215 26.02.2017 45,000/-

Total 4,05,000/-

9. That at the time of presentment of the said cheques for encashment to its

banker, the Petitioner vide Email informed the Respondents that the cheques

no. 033207,033208, 033209, 033210, 033211, 033212, 033213, 033214,

 033215 for Rs. 45,000/- each dated 06.12.2016,16.12.2016, 27.12.2016,

07.01.2017, 17.01.2017, 27.01.2017, 06.02.2017, 16.02.2017 and 26.02.2017

respectively has been deposited with the bank and requested the accused to

ensure that the said cheque would get cleared and honoured.

10.That on 07.03.2017 the Petitioner deposited the above bearing cheques for Rs.

45,000/- each to its banker Syndicate Bank, ,Pusa Campus, Delhi Branch, BIC

9029 IARI, New Delhi-110012, however, to the utter shock and surprise of the

Petitioner the said cheques were returned dishonoured by the Petitioner Bank

vide cheque returning Memos dated 08.03.2017 with remarks

“INSUFFICIENT FUNDS”.

11.That it is apparent from the conduct of the Respondents that the Petitioner was

induced fraudulently to part with such a huge amount only to satisfy their

ulterior motives. Perhaps malafide intentions have crept in the minds with

which the accused want to cheat the Petitioner of his hard earned money and

for this act of accused, they are liable for prosecution.

12.That the Petitioner thereafter on 29.03.2017 sent a legal notice to the

Respondents through its counsel by way of speed post whereby the accused
 was called upon to make the payment of the cheque amount, which the

Respondents has failed to do so till the filing of the present complaint.

13.That the aforesaid notice was dispatched /sent to the Respondents at the last

known and available addresses of the Respondents persons. The legal notice,

which was sent to the Respondents persons at their known addresses by way of

the speed post have been received back unserved by the Petitioner. However,

notices were sent at the last known available address of the Respondents and

therefore, notices are deemed to have been delivered. The Respondents persons

did not reply till now and Respondents persons have not paid the said cheque

amount to the Petitioner till the date of filing of the present complaint. Original

cheque vide no033207,033208, 033209, 033210, 033211, 033212, 033213,

033214, 033215 for Rs. 4,05,000/- dated 06.12.2016,16.12.2016, 27.12.2016,

07.01.2017, 17.01.2017, 27.01.2017, 06.02.2017, 16.02.2017 and 26.02.2017

respectively, its cheque returning memo dated 08.03.2017, copy of legal notice,

copy of Speed Post receipts for notice sent, returned noticees, Copy of Postal

department report etc. are also filed with the complaint.

14.That the aforesaid notice was dispatched/sent to the Respondents at the last

known and available addresses of the Respondents persons and which was

duly served upon the Respondents but Respondents have not paid the said
 cheque amount to the Petitioner till date neither a reply has been sent by the

Respondents.

15.ThusRespondentshave deliberately malafidely and dishonestly cheated the

Petitioner and have caused wrongful loss to the Petitioner which is legally due

and payable by theRespondents to the Petitioner. Besides Respondentshave also

committed offences punishable under the provisions of the Negotiable

Instruments Act (Amended) 1881 by getting the said cheque dishonoured in the

manner aforementioned and also by not paying the said due amount despite

being called upon to do so vide said legal notice by the Petitioner.

16.That in view of the above facts and on failure of the Respondentspersons for

non payment within the statutory period of 15 days neither sent a reply, the

cause of action accrued to the Petitioner on 15.04.2017. Petitioner filed an

application of the Petitioner U/s 138 of the Negotiable Instrument Act, 1881

seeking summoning and Punishing of Respondents for offence committed u/s

138 of the Negotiable Instrument Act, 1881before the Ld. MM which has been

dismissed vide the impugned order.

17.That the vide order dated 20.01.2018 summon were received back and

thereafter, Non appearance of respondents, the Hon’ble Court issued Non

 bailable warrants against the Respondents. However, Respondents did not

appear before the Ld trial court till the present date.

18.That the Petitioner nor the counsel could appear before the Ld, M.M trial court

and the Ld, M.M dismissed the matter in default.

19.That the Petitioner is preferring the present revision petition against the

impugned order dated 23.11.2021inter alia on the following grounds which are

without prejudice to each other:

GROUNDS:-

A. That the above noted criminal complaint was pending before the Hon’ble Court
of Mr. Sahil Khurmi ,Ld MM-02, Patiala House Court, New Delhi and the
same was dismissed for Non-Appearance of complainant on 23.11.2021.

B. BECAUSE on 23.11.2021, hearing before the Hon’ble court was through

physical mode but the complainant could not be able to come to the Hon’ble
court due to some misconception on the previous date i.e. 20.04.2021that the
Next Date of Hearing of the above said criminal complaint is 29.11.2021.

C. BECAUSE next date when the Petitioner checked the status of the above
mentioned criminal complaint he came to know that the criminal complaint was
Dismissed in Default, However the final order was uploaded on 23.11.2021 and
he came to know that same was dismissed due to Non- appearance of both the
parties.
D. BECAUSEthe Non-Appearance of the Petitioner was neither intentional nor
willful but due to some misconception Petitioner could not come to the court to
give the Appearance, However the Petitioner either personally or through
counsel tried to appear on each and every date.

E. BECAUSE on 23.11.2021 the matter was fixed/pending for appearance of

Respondents and summons were issued by the Hon’ble court ofMr. Sahil
Khurmi, Ld MM-02, Patiala House Court, New Delhi which were duly
executed and due to Non-Appearance. NBW and BW were issued and executed
again, However the Respondents did not appear.

F. BECAUSE thePetitioner has a very good case and every chances to win the
present case.

G. BECAUSEno injury would be caused to the Respondents in favour of the

present application is allowed in favour of the Petitioner and on the other hand
thePetitioner will suffer with irreparable loss if the present application is not
allowed.

H. BECAUSEif the present Application is not allowed the Petitioner would suffer
irreparable loss and the same cannot be compensated in any term.

I. BECAUSE the facts of the present case and conduct of the Respondents as stated
in the complaint by the Petitioner clearly speaks out that the Respondents had
malafide intention since the very beginning.

J. BECAUSE the complaint of the Petitioner was simply dismissed by the Ld. M.M
vide its order dated 23.11.2021 without any enquiry and examination of the
Petitioner.
K. That in view of the facts and circumstances and the various evidence on record,

the Ld. M.M., Patiala Court, New Delhi ought to have allowed application which

was filed by the Petitioner and by dismissing the said application filed by the

Petitioner, an inherent error is apparent in the impugned final order dated

23.11.2021 and therefore, the impugned order is liable to be set aside.

L. That the Ld. M.M., Patiala Court, New Delhi, has failed to address this very vital

aspect of the case which goes to the very roots of the case. Thus, impugned order

passed by the Ld. M.M., Patiala Court, New Delhi is liable to be set aside.

M. That the impugned Order is liable to be set aside as the Ld. M.M., Patiala Court,

New Delhi,had a pre-determined notion to dismiss the application/petition which

was filed by the Petitioner. That in spite of a specific request made on behalf of

the Petitioner the impugned order was passed without any enquiry and/or

examination of Petitioner on oath and therefore, the impugned order dated

23.11.2021 passed by the Ld. M.M., Patiala House Court, New Delhi is liable to

be set aside.

N. BECAUSE the Respondents have committed the offences U/s 138 of the

Negotiable Instrument Act, 1881 seeking summoning and Punishing of

Respondentsand for which they are likely to be prosecuted.

O. That the petitioner reserves its right to amend, alter and raise new grounds at the

time of hearing.
19. That the Petitioner has no other alternative remedy against the impugned order

dated 23.11.2021 passed by the Ld. M.M., Patiala House Court, New Delhi except

to file the present Petition before this Hon’ble Court.

20. That the Petitioner has not challenged the impugned order dated 23.11.2021 before

any other court.

PRAYER

In view of the facts and circumstances mentioned herein above, it is most respectfully

prayed before this Hon’ble Court that this Hon’ble Court may be pleased :

A. To allow the present revision petition and set aside the order dated 23.11.2021

passed by the Ld. M.M., Patiala House court, New Delhi in CC No. 15817 of

2017 and restore the Criminal Complaint; and/or

B. To Pass any other/ further orders which this Hon’ble Court may deem fit and

necessary, in the interest of justice, equity and good conscience.

THROUGH

Counsel for Petitioner

Sachin Mittal
SMA LAWYERS
Off: C-2/132, Janakpuri,
Place: New Delhi-110058
Date: Ph:42664353,9810166992
E-mail: [email protected]
IN THE COURT OFDISTRICT AND SESSION JUDGE, PATIALA HOUSE
COURT, NEW DELHI

CR REVISION NO. Of 2022

IN THE MATTER OF:

CUBE SOFT PVT. LTD. ……PETITIONER

VERSUS

M/S SAPPHIRE RISE AND ANR. ……..RESPONDENT

AFFIDAVIT
I, Kamal Kumar Varshney S/o Sh.S.S Varshney, Aged about 38 Years, R/o B-46,
jhandaPur, Oppt. CEL factory, Sahibabad-201010, Ghaziabad, do hereby solemnly
affirm and declare as under:

1. That I am the Petitioner in captioned Revision Petition and as such I am well

conversant with the facts of the case and can depose the present affidavit.

2. That the accompanying Petition has been drafted by my counsel under my

instructions and the contents of the same may be read as part and parcel of this

affidavit as the same has not been repeated herein for the sake of brevity.

3. That the contents of the accompanying petition have been read over to me in Hindi

and understood by me. I say that the same are true and correct to the best of my

knowledge and belief and nothing material has been concealed therefrom.

DEPONENT

VERIFICATION:

Verified at New Delhi on this __ day of___, 2022 that the contents of my above affidavit
are true and correct to my knowledge and no part of it is false and nothing material has
been concealed therefrom.

DEPONENT
IN THE COURT OFDISTRICT AND SESSION JUDGE, PATIALA HOUSE
COURT, NEW DELHI

CR REVISION NO. Of 2022

IN THE MATTER OF:

CUBE SOFT PVT. LTD. ……PETITIONER

VERSUS

M/S SAPPHIRE RISE AND ANR. ……..RESPONDENT

APPLICATION FOR EXEMPTION FROM FILING CERTIFIED COPY OF

IMPUGNED ORDER DATED 23.11.2021
1. That the Appellant has filed the above Revision Petition which is pending
adjudicating before this Hon’ble Court.

2. Due to the insinuating situation of COVID-19 in the country and the urgent nature
of filing, copy of the Impugned Order taken from the website of Delhi district
court copy.

3. The Applicant undertakes to file the certified copy as and when directed by this
Hon’ble Court.

PRAYER

It is, therefore most respectfully prayed that this Hon’ble Court may be pleased
to:-

a) Grant exemption to the Petitioner from filing certified copy of Impugned

order;and

b) Pass any other order(s) as may deem fit and proper in the facts and
circumstances of this case in favour of the Appellant and against the
Respondent.

THROUGH

Counsel for Petitioner

Sachin Mittal
SMA LAWYERS
Off: C-2/132, Janakpuri,
Place: New Delhi-110058
Date: Ph:42664353,9810166992
E-mail: [email protected]
IN THE COURT OFDISTRICT AND SESSION JUDGE, PATIALA HOUSE
COURT, NEW DELHI

CR REVISION NO. Of 2022

IN THE MATTER OF:

CUBE SOFT PVT. LTD. ……PETITIONER

VERSUS

M/S SAPPHIRE RISE AND ANR. ……..RESPONDENT

AFFIDAVIT

I, Kamal Kumar Varshney S/o Sh.S.S Varshney, Aged about 38 Years, R/o B-46,
jhandaPur, Oppt. CEL factory, Sahibabad-201010, Ghaziabad, do hereby solemnly
affirm and declare as under:

4. That I am the Petitioner in captioned Revision Petition and as such I am well

conversant with the facts of the case and can depose the present affidavit.
5. That the accompanying Petition has been drafted by my counsel under my

instructions and the contents of the same may be read as part and parcel of this

affidavit as the same has not been repeated herein for the sake of brevity.

6. That the contents of the accompanying petition have been read over to me in Hindi

and understood by me. I say that the same are true and correct to the best of my

knowledge and belief and nothing material has been concealed therefrom.

DEPONENT

VERIFICATION:

Verified at New Delhi on this __ day of___, 2022 that the contents of my above affidavit
are true and correct to my knowledge and no part of it is false and nothing material has
been concealed therefrom.

DEPONENT