IN THE COURT OF HONOURABLE JUDICIAL

MAGISTRATE, FIRST CLASS & SPECIAL COURT OF

138 N.I ACT, NAGPUR.

Criminal Complaint Case No.______/2024 Filed on :

4/03/2024

COMPLAINANT: Sanjaykumar Baraiya S/o Radhelal Baraiya

c/o. SS Beauty Parlour,1 st flr., Payal Building,

Beside Hanuman Temple, Hudkeshwar Police

Station Square, Ring Road

Nagpur, 440034, Mob. 9763388211

- VERSUS –

ACCUSED: Mr. Arvind S/o. Asaram Kathalewar,

At. Asoli, Asordi
Dist. Gondia - 441902.
Mobile No. 9168163205, 9763498218

CRIMINAL COMPLAINT FOR THE OFFENCE PUNISHABLE

UNDER SECTION 138/142 OF THE NEGOTIABLE INSTRUMENT
ACT.
 The Complainant named above most humbly begs to submit as
under:

1. Accused is well aware that complainant Mr. Sanjaykumar

Baraiya S/o. Radhelal Baraiya is a lawful citizen of India having
deep roots in the society. Complainant is a businessman and
dealing in the business of computer and CCTV. That accused is
aware that due to his honesty and sincerity he has made a great
name for himself in the said business. It is unfortunate in view
of the extraordinary circumstances complainant has been
compelled to send this statutory notice to accused.
2. Accused is aware that, accused and complainant were
having good cordial relation with each other as accused is
working as a site engineer at karanja flyover Tahsil. Lanji,
MadhyaPradesh That, accused is aware that

on 17th April 2022, accused approached complainant and

requested complainant to help accused by providing with some
financial help as a hand loan of Rs. 13,000/- for your personal
purpose. That although complainant is not money lender, but
considering the difficulty of accused coupled with the fact that
accused had good relations with complainant and his father, as
complainant was having amount with him, complainant had
given an amount of Rs. 13,000/- to accused on 17/04/2022 by
way of cash. That accused is aware that accordingly accused
has issued a receipt acknowledging the receipt of the aforesaid
amount and further by the said receipt accused had assured
complainant that accused will refund the said amount within a
period of 6 months i.e. till 16/10/2022. That the said amount
was borrowed by accused in form of hand loan and accused had
assured complainant that accused will not make any default in
payment and accused will clear the due in the prescribed frame
of time.

3. That accused is aware that since complainant was in

urgent need of money, he had approached accused in the month
of June 2023 and requested accused to refund the loan amount
which was advanced by complainant. Accused is aware that
accused at that time informed complainant that accused is
facing the financial crises as huge amount is blocked with the
customers of accused and accused had requested complainant
that soon accused will make the payment of the entire amount
which is due against accused. Accused is aware that looking to
the bonafide request of accused complainant accepted the
request of accused.

4. That accused is aware that after waiting for considerable

time period complainant on various occasions either
telephonically or meeting personally requested accused to
return the loan amount as soon as possible. However,
unfortunately all the requests made by complainant fell on the
deaf ears of accused and on one or the other pretext, accused
have failed to return the money to complainant who had given
the said money. In view of the relationship of trust with
accused, complainant had always accommodated to accused.

5. That, after making repeated persuasions accused finally

issued a cheque bearing No. 155911 dated 13/12/2023 drawn
on Bank of India, Kalmana Branch District Nagpur, for an
amount of Rs.13,000/- in favour of complainant towards
repayment of the aforesaid loan amount with an assurance that
the same will be honored on its presentation. That accused is
aware that believing upon the representation and assurance
given by accused, complainant had presented the cheque to its
Banker i.e. Bank of India, Bank, C.A Road Branch, Nagpur.
That, complainant was shocked and surprised to be placed in
hand a Bank Return Memo dated 16/01/2024, from his banker
stating that the said cheque issued by accused was dishonoured
for the reason stated “Funds Insufficient”.

5. That, having received the cheque return Memo from the

banker of complainant, complainant had immediately
contacted accused and demanded for the payment of the
amount which is due against accused, but accused did not
paid any heed to the request of complainant. That it seems
that the said act of accused was with a malafide intention to
dupe the outstanding amount of complainant and the said
contention is supported from the fact that till date accused
had not bothered to make the repayment of the amount
which is due against accused.

7. That, complainant had repeatedly contacted accused and

also requested accused to get the said payment released.
However accused have failed to repay the said amount. That,
despite making repeated telephonic calls to accused, you had
respond the call but failed to make payment made by
complainant. It is on receipt of the memo intimating about
dishonour of cheque, complainant came to the unfortunate
conclusion that accused do not have any bonafide intention to
make the payment to complainant against the cheque given by
accused and deprive complainant from receiving the said
amount due from accused. Complainant is therefore,
constrained to issue this notice as a last resort to enable
accused to purge the offence committed by making the payment
due towards complainant. Reserving the rights of complainant
to take appropriate legal action against accused for the said
fraudulent intentions of accused, complainant is issuing this
notice as required under Section 138 of Negotiable Instrument
Act, so as to enable accused to make the payment of the
amount of the dishonored cheques as contemplated under
Section 138 (c) of the said Act.
8. That, accused is very well aware that issuance of the
cheques, without having any intention to make payment not
only amounts to committing an offence punishable under
Section 138 of the Negotiable Instrument Act but also amounts
to Cheating and Criminal Breach of Trust punishable under
Sections 406 & 420 of I.P.C. That aforesaid illegal act of accused
clearly demonstrate that accused with a malafide intention had
dishonestly induced complainant by making false and frivolous
assurances and representation. Accused is fully conscious of
the fact that accused owe money to complainant and accused
have given the said cheque on account of money due against
hand loan taken by accused and therefore, accused is duty
bound to see that cheque issued by accused are honored,
however, accused have failed to do so.

Further added
9. It is submitted that after the dishonor of the cheaque, the
complainant was left with no other choice but to issue a legal
notice on 01/02/2024. By the said notice the accused person
was specifically informed that issuance of cheaque, and not
repay the amount taken is a criminal offence punishable under
Section 138 of the Negotiable Instrument. The accused failed in
his said duties. In the said notice the accused was also
expressly informed that if within 15 days of the receipt of the
said notice, the amount of dishonored promissory note is not
paid, the complainant would have no other option but to initiate
prosecution under Section 138 and 142 of the Negotiable
Instrument Act. The malafide intention of the accused to harass
and also fraudulent act amounts to committing criminal breach
of trust, becomes further apparent from the fact that after
receiving the said notice at the address as mentioned in the
clause tittle, the accused has neither replied the same nor made
any payment to the complainant. Thus, leaving the Complainant
with no other alternative than to knock the doors of this
Honorable Court for suitably punishing the accused for the
illegal act committed by him.

6. The complainant submits that the circumstances narrated

here-in-above are wide enough to show the malafide intention of
the accused person to misappropriate the amount of the
complainant in writ large on the face of it. It is submitted that
the circumstances speaks about the malafide intention of the
accused person and action therefore, needs to be taken under
Section 138/142, of Negotiable Instrument Act, for dishonour of
cheaque.

7. It is most respectfully submitted that for no fault on the

part of the complainant, the accused person has dragged the
complainant in filing the present proceeding. It was also
obligatory on the part of the accused person to make attempts
to ensure that the cheaque issued by him is honoured as
assured by him at the time of handing of the cheaque. The
circumstances of the instant matter, however, speaks otherwise.
Thus, 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 Honourable Court on the accused person so as
to compensate the losses sustained by the complainant.
Considering the malafide intention of the accused person and
the period of time for which the complainant is required to wait
believing the assurances of the accused. Thus maximum
amount of compensation at least twice of the amount of the
dishonored cheaque, needs to be awarded in favour of the
complainant.
8. The complainant submits that the cause of action for
filing of the instant complaint arose on 01/02/2024 when the
legal notice was sent by the complainant by registered post to
the accused through her counsel. It further arose when the said
notice was received by the accused on 08/02/2024. Thus the
accused have been served with the statutory notice under the
Negotiable Instrument Act. It is submitted that since the
accused has failed to make the payment of the amount of the
cheaque at Amgaon and the non-payment of the amount of
cheaque is a continuous one and therefore, the cause of action
still continues.

9. It is submitted that the Complainant is a businessman

and dealing in the business of computer and CCTV and
resident of Nagpur. The loan was given to the accused by the
complainant at Amgaon. The cheaque was issued at Amgaon
and the payment of the cheaque was to be made at Nagpur
and the fact of it’s dishonour was communicated at
Amgaon. The legal notice to the accused was issued from
Nagpur and he was called upon to make the payment of the
same at Nagpur. Thus, the act of dishonor of cheaque had
occurred within the jurisdiction of this Honourable Court.
Therefore, the Honourable Court has the necessary jurisdiction
to try and entertain the instant complaint.

15. That, the complainant has annexed the list of witnesses

and also had filed the list of documents 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.

16. The cheaque in question is of Rs. 13,000/- so the

complainant is paying a court fee of Rs. 1,000/- as per
amendment to Article 18 of Bombay Court Fees Act, 2008.
 PRAYER : It is therefore, most respectfully
prayed that, this Honourable Court be
pleased to:

a) Try and entertain the instant complaint

and suitably punish the accused for offence
committed by them punishable under Section
138/142 of the Negotiable Instrument Act,

b) Direct the accused to compensate the

complainant-company for the loss suffered by
it by making the payment of Rs. 26,000/-, in
the peculiar facts and circumstances of the
case and in the interest of justice;

c) 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
every pray.

NAGPUR

DATED: 25/02/2024 COUNSEL FOR COMPLAINANT

SOLEMN AFFIRMATION

I, Shri. Sanjay S/o. Radhelal Baraiya aged 36 years,

Occupation: Shopkeeper, resident of c/o. SS Beauty Parlour, 1st
flr., Payal Building, Beside Hanuman Temple, Hudkeshwar
Police Station Square, Ring Road Nagpur, 440034, herein do
hereby takes an oath and state on solemn affirmation as under:
1. That, the instant complaint has been drafted by my
counsel as per my instruction and the same is read over and
explained to me.

2. That, the contents of the above paras 1 to 16 are true and

correct to my personal knowledge and belief.

Hence verified and signed on this 22 th day of February

2024 at Nagpur.

I know the deponent. DEPONENT

(KARAN DAME)

Advocate

LIST OF WITNESSES

1. The complainant.

2. The bank officials of the complainant.

COMPLAI
NANT.