IN THE COURT OF HON’BLE METROPOLITAN MAGISTRATE

….COURT AT KURLA, MUMBAI

COMPLAINT CASE NO. ________/SS/2020

1. B B LOGISTICS,
Through its Proprietor/Director Mr. Boris Buthello
Age yrs, Indian Inhabitant,No: 099308 61199
Having its office at:
1, Sheltor Apartment,
Premier Road, Kurla (W)
Mumbai 400 070 ...Complainant

V/S

1. AJAZ AHMED RAFATULLAH KHAN,

Age-Adult, Occupation-Proprietor/Director
STAR Construction
Address #S/o Rafatullah Khan, Sanjay Nagar
Chand Tara Hotel, Sunder Nagar Lane,
Kamani, Kurla (W), Mumbai 400 070

2. STAR CONSTRUCTION
Address #Hill No 03, Gaaribi Hatao Nagar
Ashok Nagar, Behind Phoenix Mall,
Kurla (W), Mumbai 400 070 ...Respondent/s

CRIMINAL COMPLAINT UNDER SECTION 138 R/W SECTION

141 OF NEGOTIABLE INSTRUMENTS ACT, 1881 AS
APPLICABLE

The Complainant above-named most respectfully submits as under:

1. That, the Complainant B B Logistics, having its office at 1, Sheltor

Apartment, Premier Road, Kurla West 400 070 is engaged in
transportation of stones, Ready-mix concrete etc used for
construction.

2. That, Accused No. 1 Proprietor/Director of the Firm/Company

responsible for managing the affairs of the said firm/s & Accused no
02 is the Firm/Company, which is also in the business related to
construction i.e contractor.
3. That Complainant acquainted with Accused/s at Mira Road as
accused/s are also into the business related to construction. The
complainant met Accused/s at a building site at Mira road, where
accused was a contractor.

4. That Accused/s and Complainant happened to be from same

locality i.e Kurla hence the social connect also grew gradually by
mode of calls & visit by accused to complainant’s office besides this
as told by accused, accused has Bank Account in the same bank as
of complainant i.e Bank of Baroda, Kurla

5. That on the evening of 20 Nov 2019 accused No 01 reached out to

Complainant and told him that he is in urgent need of money as
accused’s mother is under treatment due to sudden Cardiac Arrest
at village & since she is the signatory of the Bank Account
accused/s were not able to get the money from the bank.

6. That accused/s also showed to complainant a Cheque of Rs

26,00,000 (Rs Twenty Six Lakhs) stating he does’t has money right
now but once cheque of Rs 26 lakhs will be cleared he will pay the
amount to complainant.

7. That since accused narrated that the money is needed for

the treatment of accused’s mother, on 21 Nov 2020
complainant deposited a sum of Rs 60,000 in the Account
of Accused/s. despite that accused kept calling
complainant for more money stating the problems he is
facing due to the treatment of mother. Hence requested
complainant to transfer more money to accused’s
Supplier/Vendor/Creditor namely Pravin.

8. That complainant considering accused’s words and the reason of

accused’s mother being under treatment transferred more money
to accused’s account & referred Account/s. Annexed herewith
and marked collectively as EXHIBIT- … Colly Copies of cash
Pay-in-Slip, Statement of bank accounts showing fund
transfer/s.

Particulars of the Cash Deposited/Transferred to accused’s Account/s

are as below:
 DATE MODE AMT(IN RS)

21 Nov 2019 CASH DEPOSIT 60,000/-

26 Nov 2019 ACCOUNT TRANSFER 50,000/-
27 Nov 2019 - SAME - 1,00,000/-
30 Nov 2019 - SAME - 50,000/-
TOTAL (IN RS) 2,60,000

9. That after regular follow ups for months, in the month of March
accused issued Post Dated cheque/s (PDCs) of Rs. 2,60,000/- signed
by accused no 1 towards the outstanding stands against them by
virtue of money paid to accused/s & referred Accounts, for the
reason being his mother under Treatment of cardiac arrest.
Details of the cheque/s is as below.

S.No DATE CHEQUE AMT. IN Drawn On

. No. Rs.
1. 04.05.202 000654 2,60,00 BANK OF BARODA,
0 0 Kurla, Mumbai
400 0

10. That, the complainant deposited Cheque/s no 000654 in it’s Bank

of Baroda, Kurla Branch, Mumbai on 10.07.2020 unfortunately the
said Cheque/s was dishonored and returned with remarks as
‘FUNDS INSUFFICIENT’. Along with cheque returned memo dated
12.7.2020. Received by us on 15.7.2020.

11. That thereafter after follow-ups with no positive result,

complainant deposited the cheque/s with nos 000654 on
10.08.2020 in the same Bank again. However our client was
shocked to see that the said Cheque/s met the same fate and
dishonored and returned with remarks as ‘FUNDS INSUFFICIENT’
along with cheque returned memo/s dated 13.08.2020. Received by
us on 16.8.2020. Annexed herewith and marked collectively
as EXHIBIT- … Colly is copy of Cheque/s a/w Cheque return
memo/s.
12. That the complainant tried to make multiple contacts with you
for the amount but met with no success in getting his outstanding
amount.

13. That the Complainant states that on the basis of assurance of the
Accused/s that on presentation of said cheque, will be honored by
the Accused’s bank, the Complainant had accepted the cheque/s
believing the same.

14. That, the way the events have enfolded it is clear that Accused/s
had intentionally issued cheque/s with dishonest and malicious
intention of not paying complainant its dues. Accused/s by conduct
are belying the faith reposed by complainant. You Accused/s ought
to be careful in issuance of cheque/s, knowing very well that in the
event of dishonored cheque/s, you Accused/s would be made liable
for serious legal consequences.

15. That the dishonor of the cheque/s clearly shows the fraudulent
and dishonest intention of you Accused/s in not permitting our
client to get back its legal dues despite of assurances given by you
Accused/s. Accused/s have failed to keep up promise. This has
come as a shock to our client. On receipt of the memo/s from the
bank complainant have come to an unfortunate conclusion that you
Accused/s do not have any bonafide intention to make the payment
to our client against the amount due.

16. That the Complainant humbly submits that the dishonor of

aforesaid cheques establishes the malafide intention of the
Accused/s. It is obvious that the accused/s have done this act
willfully and knowingly to cheat the Complainant for wrongful gains.

17. That on account of dishonor of the said cheque/s, the

Complainant had served the statutory legal notice under section
138 r/w section 141 of Negotiable Instruments Act, 1881 dated 10 th
Sep 2020 upon the Accused/s through RPAD/Speed Post vide
Receipt No. EE842253890, EE842253909IN their known addresses.
 Annexed herewith and marked collectively as EXHIBIT- …
Colly copy of registration certificate of the Accused/s.

18. That both notices RETURNED undelivered on 21/09/2020 because

of reason INSUFFICIENT ADDRESS. Annexed herewith and
Collectively marked as EXHIBIT-… Colly are copies of statutory
notice, postal receipt and delivery status of India Post.

19. That the dishonour of cheque/s make it clear that intentions of

the Accused/s are not honourable and that the Accused simply want
to avoid making payment of the amount due. As per the knowledge
of the complainant herein the status of the accused/s is as follows.
Accused No. 1 is the PROP/Director of firm whereas the Accused
Nos. 2 is the allied firm & Accused no 1 is severally responsible for
managing the affairs of the said firm/s. the cheque was issued for
discharge of legal liabilities. Knowing fully well about their legal
liability and the issuance of cheque in discharge thereof, the
accused failed to keep sufficient funds in their account and as a
result of which the cheques given by them were dishonored. By the
said act, the Accused person has therefore made themselves liable
for the punishable for the offences U/s. 138 r/w 141 of Negotiable
Instruments Act, as applicable.

20. That it is well within knowledge of the accused/s that the said act
also amounts to cheating and criminal breach of trust punishable
under Sections 406 and 420 of I.P.C too. It was obligatory on the
part of the accused to make the entire payment within 15 days,
from the date of receipt of the notice. It is submitted that since the
Accused/s failed to make the payment of the dishonored cheque
within 15 days of receipt of statutory notice, the offence punishable
under Section 138 read with Section 141 of Negotiable Instrument
Act, As applicable is complete. The opportunity given to the
Accused/s to get the offences purged to make the payment of the
dishonored cheque, within 15 days from the receipt of the said
notice, the accused/s having failed to get the offence purged, they
cannot be permitted to say that they are not liable for the
prosecution. Thus, there is no legal impediment in entertaining the
instant complaint. The present complaint is filed within its limitation
period.
21. That it was obligatory on the part of the accused/s to make
attempts to ensure that the cheque/s issued are honoured.
Considering the intention of the legislation behind enacting the
provision under Section 138 of Negotiable Instrument Act, the
complainant 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 Hon’ble Court on the Accused/S,
so as to compensate the losses sustained by the Complainant.
Considering the malafide intention of the Accused and the period of
time for which the complainant has been relying on the assurances
of the accused, maximum amount of compensation at least twice of
the amount of the dishonoured cheque, needs to be awarded in
favour of the complainant. It is for no fault of the Complainant it
also has to pay Court fee for the purpose of filing the present
complaint and incur other expenses in relation to the same.

22. That the cause of action for filing of the instant complaint arose
when the cheque issued by the accused came to be dishonoured.
Thus in view of Section 138 (c) the accused has failed to make the
payment of the cheque to the complainant within 15 days of the
receipt of the notice. Thus, the non-payment of the amount of
cheque is a continuous one and therefore the cause of action is
subsisting and continuing in nature.

23. That The Complainant submits that in default of the payment by

the Accused/s, the Complainant is filing this complaint, which is
within the limitation period as specified in section 138 read with
Section 141 of the Negotiable Instruments Act, 1881.

24. That the complainant maintains its account with Bank of

Baroda, Kurla at Mumbai, hence it falls within the territorial
jurisdiction of this Hon’ble Court. Therefore, this Hon’ble court has
jurisdiction to try, entertain and adjudicate upon the present
complaint. It is submitted that, the Complainant has not filed any
other case in any other court under section 138 r/w 141 of the
Negotiable Instrument Act, 1881 As applicable for taking action
 against the accused person. Annexed herewith and marked
collectively as EXHIBIT- … Colly copy of cancelled cheque.

25. That the Complainant states that Accused persons had

knowledge of the issuance of the cheque/s and as such were
deemed responsible for making the payments to the complainant. It
is submitted that cheque/s were signed and issued by the
Accused/s and has been dishonoured. By the said act, all the
Accused persons have therefore made themselves jointly and
severally liable for the offence punishable under U/s 138 r/w 141 of
Negotiable Instruments Act, As Applicable.

26. That, the Complainant has 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.

27. That the amount of the dishonoured cheque in question is of Rs.

2,60,000/-, therefore the Complainant has paid Rs. 5200/-as court
fee applicable under the relevant Act.

28. That it is submitted that the accused/s have committed the

offence u/s. 138 r/w 141 of the Negotiable Instrument Act, 1881, as
amended till date, by not making payment towards the above said
legally enforceable liability in respect of the dishonoured cheques
for Rs. 2, 60,000/-, which is subject matter of this present case and
therefore they are liable to be prosecuted as per law.

29. That The accused is therefore liable to be tried and punished

under Section 138 r/w Section 141 of the N.I. Act, As applicable.

30. That the list of documents and witnesses are annexed with this
Complaint. The Complainant craves leave of this Hon’ble Court to
produce any other relevant documents/witness as and when
required.

31. Hence the following prayers

PRAYER/s : It is therefore,
prayed that, the kind and Hon’ble
Court be pleased to:

a) Try and entertain the instant

Complaint and take cognizance of

the offences committed by the
Accused/s in the present matter;

b) Suitably punish the accused/

S for offence committed by them

punishable under Section 138 r/w
Section 141 as applicable of the
Negotiable Instrument Act, As
applicable in the peculiar facts and
circumstances of the case.

c) Direct the accused to

compensate the complainant for
the loss suffered by it by making
the payment of Rs. 5,20,000/- i.e.,
double of the amount of cheque/s
which was dishonoured, or
whatever maximum amount
deemed fit and proper by the
Honourable Court, in the peculiar
facts and circumstances of the
case and in the interest of justice;

d) And be further pleased to

grant such other relief and pass
such other order as may deemed
fit in the facts and circumstances of
the case and in the interest of
justice;
 And for which act of
kindness, the complainant shall
remain duty bound and ever pray.

Date: .10.2020

At Mumbai Complainant

VERIFICATION

I, Mr. Boris Buthello Prop/Director, aged about years, Adult, Indian

Inhabitant, having office at 1,Sheltor Apartment, Premier Road, Kurla
West 400 070, do hereby solemnly affirm and say that whatever is
stated in the foregoing Complaint is true and correct to my own
knowledge and complaint’s legality based on legal advice received
which I believe to be true.

Solemnly declared at Mumbai

This day of Oct 2020 (______________)

Complainant

Identified by me

BEFORE ME
Adv. Gopal Tripathi
a/w Adv. Sumit Khanna
Advocate for the complainant
B-302, Umarji House,
Andheri (E), Mumbai -400069
+91 98338 11905 I 98335 12257
[email protected]