Written Argument format in 138 Negotiable Instruments Act Complaint against return of cheque

Format of Written Argument in Section a case of 138 of Negotiable Instruments Act against return of Cheque.

IN THE COURT OF LD METROPOLITAN MAGISTRATE (N.I. ACT), SOUTH EAST, SAKET COURTS, NEW DELHI
COMPLAINT CASE NO. ________ OF 20__ (CNR NO. _____________)

IN THE MATTER OF:
MR. ____________ COMPLAINANT
VERSUS
MR. ________________ ACCUSED

P.S. ________________
Next Date of Hearing ________

MEMORANDUM OF WRITTEN ARGUMENTS ON BEHALF OF THE PETITIONER U/S. 314 OF CR.P.C.

MOST RESPECTFULLY SHOWETH:

That on behalf of the Petitioner above named it is most respectfully submitted as under:
1. That the Complainant has filed the aforesaid complaint for an offence u/s. 138 of the Negotiable Instruments Act.

2. The prosecution case in brief as set out in the complaint filed in the above case is as follows:-

a. That in ________20__ the accused namely Mr. ______________ had approached the complainant personally and informed that he is recruiting candidates for overseas placement and offered to recruit 50 Staff for jobs in Qatar. The accused had demanded security deposit of Rs. _________ per candidate for recruiting them. The accused assured the complainant that the recruitment will be completed within 45 days and in case of failure to recruit the nurses, the security deposit will be refunded immediately.

b. That by ________ _______the complainant paid Rs. ________ (___________________ to the accused as security deposit for recruitment of 29 Nurses @ Rs. ________per candidate, in different installments by believing the promise of the Accused.

c. That the accused issued the following cheques to the complainant to encash it in case of failure to recruit the nurses within 45 days.

Cheque No. Date Amount Rs.

That in order to discharge his above said liability and in accordance with the agreed terms and conditions, the accused had issued Cheque No. ________ dated ________for Rs. ________Cheque No. ________ dated ________for Rs. ________Cheque No. ________ dated ________for Rs. ________Cheque No. ________ dated ________for Rs. ________Cheque No. ________ dated ________For Rs. ________- all cheques drawn on ________________ The said cheques were issued from account ________ which is held in the name of the accused (EX CW1/A). That the present complaint is based on the dishonor of the above said cheque which was issued in discharge of a lawful debt.

d. That the Complainant waited for 45 days to start recruitment process of nurses and found that the accused was cheating him by giving false promises.

e. That at the time of handing over the above said cheque the accused had assured the complainant that the said cheque will be honored/encashed on presentation. Taking the above assurance/representation as true, the complainant had accepted the above said cheque.

f. That on the basis of the assurances given by the accused, the complainant presented the above said cheques with his bankers namely ________. The said cheques were dishonored vide cheque return advice dated ________ issued by the complainants bank. The aforesaid cheque was returned unpaid vide returning memo dated ________ with the remarks ________.

g. That the dishonor of the cheque clearly shows and establishes that the accused did not intend to honor the amount under the said cheque.

h. That on account of the dishonor of the said cheque, the complainant had served a legal notice dated ________upon the Accused by way of Regd post vide acknowledgement No. ________ dated ________. However, despite service of notice, the accused has not taken any steps to liquidate his liability and has failed to make payment to the complainant towards the amount covered under the said cheque, within the statutory period of 15 days or thereafter. Thus, the Accused has, therefore committed an offence within the meaning of Section 138 and other sections of the amended provisions of the Negotiable Instruments Act, 1881, for which he is liable to be prosecuted and punished.

i. That the accused has failed to make payment against the said cheques which has been done by him malafidely, intentionally and deliberately and knowingly. That at the time of issuing the said cheques the accused was fully aware that the said cheques will not be honored on presentation. Therefore, the accused has dishonestly induced the complainant to advance a sum of Rs. ________ fully knowing that he cannot repay the said amount to the complainant.

j. That the accused is guilty of offence under Section 138, Negotiable Instruments Act and is also liable to be prosecuted under Section 420 of the Indian Penal Code.

k. That in view of the facts and circumstances, the complainant has a cause of action and right to file the present complaint. The cause of actions has arisen in favour of the complainant when, on the expiry of the notice period, the Accused has not come forward to pay the amount relating to the dishonored cheques. The cause of action is still subsisting and continuing in nature.

l. That the cause of action has arisen at New Delhi as the cheques was issued at New Delhi, and the same was payable at New Delhi and was also dishonored at New Delhi. Therefore this Hon'ble Court has jurisdiction to try and adjudicate upon the present complaint.

3. That the complaint is well within limitation period prescribed under the Act ________That the Complaint was originally filed with this Hon'ble Court on ________as Complaint No. 4660 of 2013 and Summon was issued and process started. The Accused did not appear for long time. After that in view of the decision of the Hon'ble Supreme Court in case Titled as Dashrat Rupsingh Rathod Vs. State of Maharashtra Crl. Appeal No. 2287 of 2009, the territorial jurisdiction had been changed and the Complaint was transferred to Karkardooma Court. The Hon'ble Court of Karkardooma also issued summons and Warrants to the Accused, but he did not appear and evaded arrest. That in 2015 the Government notified Negotiable Instruments (Amendment) Bill, 2015 focus on clarifying the jurisdiction related issues for filing cases for offence committed under Section 138 of the Act and the Jurisdiction of the case again came to be this Hon'ble Court. Accordingly the said Criminal Complaint was again transferred to this Hon'ble Court with filing No. ________, filing date ________. The matter was registered again on ________with Registration No. ________.

4. That after issuing summon in the matter, the Accused has been absconded for more than 4 years and not attended the court even after sending more than 42 summons / warrants / non-bailable warrants etc. That in 2018 he claimed to have met with an accident and on a wheel chair and faced difficulty in absconding again hence he approached this Hon'ble Court to get bail. By considering his physical inefficiency this Hon'ble Court granted him bail.

5. That the accused again skipped appearing for the case and this Hon'ble Court again issued summons, bailable and Non-bailable warrants against the accused many times and the accused evaded arrest for long time. That the accused has abused the process of court many times.

6. That the Complainant Evidence was taken on ________and the matter was listed for Defence Evidence on ________But the accused dragged the matter for Defence Evidence till ________ (more than 3 years and 5 months). That last and final opportunity was given to the accused to argue on the application u/s 311 Cr.PC and to lead defence evidence vide order dated ________of this Hon'ble Court, however none has appeared on behalf of the accused on ________. Considering that the case is more than 05 years old, this hon'ble court did not incline to give any further opportunity to the accused to argue on the application u/s 311 Cr.PC and to lead defence evidence. Therefore, the application u/s 311 Cr.PC was dismissed for non appearance of the accused.

7. That for the last 9 years the accused abused the process of law, which clearly shows that the accused has no respect to the Judiciary.

8. That in 2018 the Accused has filed application under section 145(2) of Negotiable Instruments Act 1881 for seeking permission for cross examination of the Complainant and his Witnesses and raised some contentions. The on ________the Complainant has filed reply against the said application and denied all baseless allegations and answered all the contentions of the accused.

9. That the following observations of this Hon'ble court clearly show that the accused misused bail granted to him and abused the process of law. That in the order dated ________this Hon'ble Court observed that "Ld. Counsel for the accused has moved an exemption application that the accused is not in a physical position to even utter a single word. Medical documents in support of his submissions are furnished. Perusal of the record reveals that an application for permanent exemption of accused is pending and the Ld. Counsel for the accused was directed to furnish an undertaking from the accused that he will not dispute his identity during the proceedings of the court and the evidence could be taken in his absence when the counsel on his behalf is present before the court. Today Ld. Counsel for the accused submits that he could not furnish such an undertaking as the accused is not in a position to undertake or sign such undertaking. In light of the above facts, the court is of the opinion that in order to proceed further in this case, it seems that it is material to examine the concerned doctor M.A. Khan under whose treatment the accused is. In light of the above facts, issue summons to Dr. M.A. Khan, Saifee Hospital, 15/17, Maharishi Karve Marg Opposite Charni Road, Railway Station, Mumbai-400004 on filing of PF within one week from today". But till date Dr. M. A. Khan has not appeared before this Hon'ble Court.

10. That the accused is deliberately delayed hearing of the matter for long period. That on ________this Hon'ble Court observed that "Exemption application on behalf of accused is filed. The same is not supported with any documents. It seems that the accused is deliberately avoiding the proceedings of the court and trying to delay the case. Hence, the exemption application is dismissed. Issue NBWS against the accused on filing PF within one week from today."

11. THE INGREDIENTS OF SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT.
a. Credit Facility of Rs. ________extended to the accused and the accused issued cheques for Rs. ________ to the Complainant to discharge his liability. So the drawer of the cheque possessed a legally bound debt towards the Complainant and the same is discharged by drawing a cheque.

That 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. That the Accused had issued Cheque No. ________ dated ________for Rs. ________ Cheque No. ________ dated ________for Rs. ________Cheque NO. ________ dated ________for Rs. ________Cheque No. ________ dated ________for Rs. ________Cheque No. ________ dated ________For Rs. ________all cheques drawn on ________ in my favour towards discharge of his above said liability. The above cheque was drawn on ________.

b. Non Maintenance of Balance with the Bank and closing of Bank account after issuing Cheque.

That the above cheques, on presentation, was dishonoured by the bank of the Accused vide returning memo dated ________stating the reason to be "ACCOUNT CLOSED." The accused never disputed his signature and did not deny issuing cheque from his account. The Accused did not dispute cheque return memo also. The cheques are returned due to deficient funds / deliberate closure of account.

c. The presentation of the cheque was carried out within a period of six months or within the stipulated time frame. That the Complainant had presented cheques to the bankers of the accused within stipulated time frame and before the expiry date of cheques.

d. The Complainant had served Legal Notice though his counsel to the Accused and Demanded Money from the accused against the returned cheques.

That on account of the dishonor of the said cheques, the complainant had served a legal notice dated ________upon the accused person and informed him regarding the insufficiency of fund and raised demand for payment of the cheque amount.

e. The Complainant did not receive payment from the accused within the stipulated time That the Complainant had sent legal notice dated ________to the accused person demanding the cheque amount. But the accused failed to pay the money within the statutory period,

f. Complaint filed within statutory period
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.

Under these circumstances, the Complainant most respectfully prays that this Hon'ble Court may graciously be pleased to prosecute and punish the Accused and also direct the accused to pay the amount as double to the amount covered under the said dishonored cheques, under the provisions of Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 as amended by the Negotiable Instrument laws (Amended and Miscellaneous Provisions) Act, 2002. In accordance with Section 357 of Code of Criminal Procedure 1974, out of the penalty imposed, the Accused be ordered to compensate the Complainant to the extent of Rs. ________ and pass such other and further orders may be passed as may be deemed fit and proper by this Hon'ble Court.

THROUGH

ADVOCATE FOR THE COMPLAINANT

Date: ________
Place: New Delhi