IN THE COURT OF CHIEF METROPOLITIAN MAGISTRATE, EAST

DISTRICT, KARKARDOOMA COURTS, DELHI

CRIMINAL COMPLAINT NO. __________ / 2018
IN THE MATTER OF:–
DINESH SHAW … COMPLAINANT
VERSUS
VIPIN KUMAR … ACCUSED

INDEX
S. No. Particulars Court Fees Pages
1. Memo of parties 1
2. Complaint U/s-138/142/ 117 (c) of N.I. Rs. 2/-
Act,1881 along-with affidavit
3. List of witnesses
4. List of documents with documents
5. Pre-Summoning Evidence by way an
Affidavit
6. Vakalatnama in favour of counsel with Rs. 2 + 5
welfare stamp

FILED BY:-

Place: Priyanka
Dated: Radhey Shyam & Associates
(Advocates & Legal Consultants)
Off: X-25, Civil Side, Tis Hazari Court, Delhi
Mobile No.: 9899927711
 IN THE COURT OF CHIEF METROPOLITIAN MAGISTRATE EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
CRIMINAL COMPLAINT NO. __________ / 2018
IN THE MATTER OF:–
DINESH SHAW … COMPLAINANT
VERSUS
VIPIN KUMAR … ACCUSED

MEMO OF PARTIES
Dinesh Shaw
S/o Sh. Ram Chander Shaw
R/o D-213 Ganesh Nagar,
Pandav Nagar Complex
Delhi- 110092 … COMPLAINANT
VERSUS
Vipin Kumar,
S/o. Sh. Bani Singh,
R/o. S-137, Pandav Nagar,
Delhi-110092 … ACCUSED

Complainant
Through

Place: Priyanka
Dated: Radhey Shyam & Associates
(Advocates & Legal Consultants)
Off: X-25, Civil Side, Tis Hazari Court, Delhi
Mobile No.:9899927711
 IN THE COURT OF CHIEF METROPOLITIAN MAGISTRATE EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
CRIMINAL COMPLAINT NO. __________ / 2018
IN THE MATTER OF:–
DINESH SHAW … COMPLAINANT
VERSUS
VIPIN KUMAR … ACCUSED

COMPLAINT U/S 138/ 142/ 117 (C) OF THE NEGOTIABLE

INSTRUMENT, 1881 AS AMENDED UPTO DATE
P.S.:- MANDAWALI
DISTRICT:- EAST
MOST RESPECTFULLY SHOWETH:

1. That the complainant is the law abiding citizen of India and presently residing
at D-213 Ganesh Nagar, Pandav Nagar Complex, Delhi-110092. Copy of
Identity Proof of the complainant is annexed hereto as Annexure-I for kind
perusal of this Hon’ble Court.

2. That the accused is a builder and doing all types of construction work and
after completion of construction, the accused sold the constructed building,
flats etc. to the general public.

3. That the accused had agreed to sell a build up Flat on Second Floor, plinth
measuring area 25 sq. yards consisting of One Room Set upto ceiling level
without roof rights along-with staircase and entrance as a common rights with
others floor owners which is built on property bearing no. D-30, Ganesh
Nagar, Pandav Nagar Complex, Delhi- 92, to the complainant for
consideration of Rs. 11,60,000/- (eleven lakhs sixty thousand only).

4. That the accused had taken an earnest money/bayana from the complainant a
sum of Rs. 3,25,000/- (three lakhs twenty five thousand only) to sell the
above mentioned flat and executed an agreement to sell on 14 th day of April,
2018 but the accused has failed to execute the sale deed/ proper transfer
document on and after 30.05.2018. It is pertinent to mention here that the
accused had denied to sell the said flat to the complainant as accused had
already sold the said flat to the others and cheated the complainant. Copy of
 said bayana agreement dated 14.04.2018 is annexed hereto as Annexure-II for
kind perusal of this Hon’ble Court.

5. That the accused had issued two post dated cheques bearing no. 073203 dated
28.06.2018, for Rs. 1,50,000/- and 073202 dt. 28.07.2018 for Rs. 1,75,000/-
respectively drawn on Central Bank of India, Acharya Niketan, Mayur Vihar
Phase-I, East Delhi-110091, on account of part payment of double amount of
earnest money.

6. That under the instructions of accused, the complainant presented the cheque
bearing no. 073203 dated 28.06.2018, for Rs. 1,50,000/- in his bank namely
State Bank of India, Mother Dairy, Patparganj, Delhi, for encashment, but the
said cheque has returned dishonored with remarks `Payment Stopped By
Drawer` by the banker of accused, vide cheque return memo dt. 30.06.2018.
The said original Cheque and Original Return Memo are annexed hereto as
Annexure III and Annexure IV for kind perusal of this Hon’ble Court.

7. That the complainant accordingly informed the accused, about fate of said
cheque, and demanded payment of said cheque. However, the accused has
made excuses for non-payment said cheque amount till date.

8. That as the complainant got to know that he was cheated by the accused as
the accused has already sold the said flat to the other person, on the other
hand the accused has executed an agreement to sell with the complainant, he
made a police complainant against the accused for such cheating but despite
to take an action on said complaint, the police in connivance with accused
forced the complainant to settle the present matter in lump sum amount of Rs.
3,50,000/-( Rs. three lakhs fifty thousand only). Copy of complaint is
annexed hereto as Annexure V for kind perusal of this Hon’ble Court.

9. That the accused had again cheated the complainant and issued a Pro-note of
Rs. 3,50,000/- (three lakhs fifty thousand only) in favour of complainant to
settle the double amount of earnest money and to reimburse the above said
amount including interest of Rs. 25,000/-(twenty five thousand only) and
agreed to pay the said amount into three installment dated 25.07.2018 for Rs.
1,25,000/-(one lakh twenty five thousand only), 25.08.2018 for Rs. 1,25,000/-
(one lakh twenty five thousand only) and 25.09.2018 for Rs. 1,00,000/-(one
lakh only) respectively on 15.07.2018, whereas the accused is liable to pay
double amount of earnest money as per the agreement dt. 14.04.2018, but the
 accused has failed to make the said payment even many requests made by the
complainant. Copy of said pro-note is annexed hereto as Annexure VI for
kind perusal of this Hon’ble Court.

10. That the accused person is under a legal and moral obligation to make
payment of said cheque amount with the balance amount as per the double
amount of earnest money to the complainant, which the accused person has
failed to pay to the complainant till date.

11. That the accused deliberately and willfully started to evade the complainant
and whenever the complainant used to call over telephone the accused either
refused to take the call and/or pretended to be busy in some work and
whenever the complainant tried for a meeting and requested for a meeting so
the same matter could be resolved and sorted out the accused dishonestly
avoided and never tried to meet and pretended to be busy or out of station on
one pretext or other.

12. That the complainant has sent a legal notice dated 28 th July 2018 and called
upon the accused to make the payment of the amount covered by the
dishonored cheque. The said notice was sent to the accused by Speed Post
and the same is duly served upon the accused person. The Legal Notice dated
28.07.2018, Original Postal receipts and Original Proof of Delivery of the
said legal notice are annexed as Annexure VII, Annexure VIII and Annexure
IX for kind perusal of this Hon’ble Court.

13. That the despite service of above said legal 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 but the accused has sent a reply to the
legal notice dated 28.07.2018 and denied his liability towards the complainant
to avoid for making the payment and to usurp the above said amount. Copy of
reply to the notice is annexed as Annexure X for kind perusal of this Hon’ble
Court.

14. That the issuance of cheque by the accused is an act which has been done
deliberately, mischievously & malafidely with an intention to cheat the
complainant, even at the time of issuance of the said cheque as the accused
was aware of the fact that on presentation the cheque, the cheque would never
be honored because of Payment Stoppage, which in turn caused unlawful gain
 to the accused and unlawful loss to the complainant, which is unethical and
unprincipled and illegal in nature.

15. That the accused has issued the aforesaid cheque and performed contrary to
his assurances and promises extended and the entire camouflage woven by
the accused caused a great hardship to the complainant and led to financial
losses, as a considerable amount has been devoured by the accused.

16. That the accused has committed the offence which attracts the penal provision
given U/s. 138/142 of Negotiable Instruments Act and is also liable to be
prosecuted U/s. 406/ 420 of the Indian Penal Code. Hence, the accused liable
to be prosecuted under the penal provisions of Indian Penal Code &
Negotiable Instruments Act.

17. That in view of the facts and circumstances, the complainant has a cause of
action and right to file the present complaint. That the cause of action arises
in favour of complainant when the agreement to sell/ bayana was executed by
the accused, it further arise when the accused denied to handover the flat in
question to the complainant on 30.05.2018 as he already sold the flat the other
and cheated the complainant, it further arises when the accused issued two
post dated cheques for reimburse the double amount of earnest money out of
which one cheque issued dated was 28.06.2018, and the same was dishonored
on 30.06.2018, it further arise when complainant made a police complainant
against the accused, it further arises when the accused issued a pro-note of Rs.
3,50,000/- to settle the matter in lumpsum and again cheated the complainant,
it further arises when the accused again failed to make the payment to the
complainant. It further arises in favour of the complainant when, on the
expiry of the notice period, it further arises when the accused sent a reply to
the legal notice and denied his liability to make the payment to usurp the
money of the complainant. It further arises as accused has not come forward
to pay the amount relating to the dishonored cheque. It is still subsisting and
continuing in nature. Therefore this Hon’ble Court has jurisdiction to try and
adjudicate upon the present complaint.

18. That the complainant has complied with all the requirements of the Section
138 of the Negotiable Instruments Act, 1881 as amended up to date namely
the cheque in question were present within the period of its validity, the
demand for the payment via notice was made to the accused on 28 th July 2018
i.e. within the fifteen days of the date of receipt of information regarding the
 dishonoring of the cheque. The accused has failed to make the payment
within 15 days of the said notice as given in notice. That the complainant has
approached this Hon’ble Court within one month of the date of cause of
action. The complaint is therefore within the period of limitation.

19. That the stipulated court fee is attached with the present complaint.

20. That this Hon’ble Court has the jurisdiction to entertain and try the present
complaint because the offence is committed within the jurisdiction of this
Hon’ble Court. The dishonored cheque was drawn on Central Bank of India,
Acharya Niketan, MayurVihar Phase-I, East Delhi-110091 and the same was
deposited by the complainant in his bank namely State Bank of India, Mother
Dairy, Patparganj, Delhi and the intimation regarding the dishonor of the said
cheque was also given by the said banks and as such the offence has been
committed within the jurisdiction of this Hon’ble Court.

21. That the complainant reserves his right to file a separate suit for recovery of
due amount as per the provisions of CPC.

PRAYER

It is therefore, most respectfully prayed that this Hon'ble Court may kindly
be pleased to pass the orders, directions and grant the following reliefs in
favour of the Complainant in the interest of justice:-
1. Summon, prosecute the accused U/s. 138 of the Negotiable Instrument Act,
1881 as amended upto-date and punish the accused in accordance with law
for the aforesaid offence committed by him;
2. And also direct the accused to pay the amount as double to the amount
covered under the said dishonored cheque, under the provisions of Section
138 read with Section 142 of the Negotiable Instruments Act,1881 as
amended up to date;
3. And the respondent may kindly be directed to pay a cost of litigation of Rs.
30,000/-(thirty thousand only)
4. And the respondent may kindly be directed to pay a compensation under
section 117(c).
5. Or Pass any such order or further order, direction or relief in favour of
the Complainant as this Hon’ble Court may deems fit and proper in the
facts and circumstances of the present case.
 AND FOR THIS ACT OF KINDNESS, THE COMPLAINANT
SHALL AS IN DUTY BOUND, EVER PRAY.

COMPLAINANT
THROUGH

COUNSEL
Place:
Dated:

VERIFICATION
I, Dinesh Shaw, son of Sh. Ram Chander Shaw, resident of D-213 Ganesh
Nagar, Pandav Nagar Complex, Delhi-110092, the Complainant above
named do hereby solemnly verify that the contents of the above
Complaint are true and correct to my knowledge and best of my
beliefs and no material has been concealed therefrom.
Verified at Delhi on this day of August, 2018

COMPLAINANT
 IN THE COURT OF CHIEF METROPOLITIAN MAGISTRATE EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
CRIMINAL COMPLAINT NO. __________ / 2018
In the matter of:-
Dinesh Shaw …Complainant
Versus
Vipin Kumar ...Accused

List of Witnesses on behalf of complainant

1. Complainant.
2. Official concerned /clerk concerned of State Bank of India, Mother
Dairy, Patparganj, Delhi with details of dishonoured cheque bearing no.
073203, dated 28.06.2018, for Rs.1,50,000 (one lac fifty thousand only),
drawn on Central Bank of India, Acharya Niketan, MayurVihar Phase-I, East
Delhi-110091, issued in favour of Dinesh Shaw, dishonoured on 30.06.2018,
with statement of account of Dinesh Shaw.
3. Official concerned /clerk concerned of Central Bank of India,
Acharya Niketan, MayurVihar Phase-I, East Delhi-110091, with details of
dishonouredcheque bearing no. 073203, dated 28.06.2018, for Rs.1,50,000
(one lac fifty thousand only), issued in favour of Dinesh Shaw dishonoured
on 30.06.2018.
4. Any other witness(s) with the permission of this Hon’ble court.

COMPLAINANT
Delhi
Dated:- Through

COUNSEL
 IN THE COURT OF CHIEF METROPOLITIAN MAGISTRATE, EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
CRIMINAL COMPLAINT NO. __________ / 2018
In the matter of:-
Sh. Dinesh Shaw …Complainant
Versus
Sh. Vipin Kumar ...Accused
AFFIDAVIT
I, Dinesh Shaw S/o. Late Sh. Ram Chander Shaw, aged about 40 years, R/o D-
213 Ganesh Nagar, Pandav Nagar Complex, New Delhi-110092, do hereby
solemnly affirm and declare as under:-

1. That I am the complainant in above mentioned case and well

conversant with the facts and circumstances of the present case, hence
competent to swear this present affidavit.

2. That I have not filed any complaint/ suit etc. in respect of cheque
bearing no. 073203 for Rs. 1,50,000 ( one lac fifty thousand only), dated
28.06.2018, drawn on Central Bank of India, Acharya Niketan, MayurVihar
Phase-I, East Delhi-110091, except the present criminal complaint.

3. That the contents of my accompanying complaint are true and

correct, same is drafted by my counsel under my instructions, the same is read
over to me in vernacular language and the same is understood by me, same
may kindly be read as part and parcel of this affidavit. Same are not repeating
herewith for the sake of brevity.

DEPONENT

VERIFICATION:-
I, the above named deponent, do hereby state that the contents of my above
affidavit are true and correct to the best of my knowledge and nothing has been
concealed there-form.
Verified at Delhi on this day of August, 2018
DEPONENT
 IN THE COURT OF CHIEF METROPOLITIAN MAGISTRATE, EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
CRIMINAL COMPLAINT NO. __________ / 2018
In the matter of:-
Sh. Dinesh Shaw …Complainant
Versus
Sh. Vipin Kumar …Accused

PRE-SUMMONING EVIDENCE BY WAY OF AN AFFIDAVIT

I, Dinesh Shaw S/o. Late Sh. Ram Chander Shaw, aged about 40 years, R/o D-
213 Ganesh Nagar, Pandav Nagar Complex, New Delhi-110092, do hereby
solemnly affirm and declare as under:-

1. I state that I am the law abiding citizen of India and presently residing at D-
213 Ganesh Nagar, Pandav Nagar Complex, Delhi-110092. Copy of Identity
Proof of me is Ex. as CW-1(OSR).

2. I state that the accused is a builder and doing all types of construction work
and after completion of construction, the accused sold the constructed
building, flats etc. to the general public.

3. I state that the accused had agreed to sell a build up Flat on Second Floor,
plinth measuring area 25 sq. yards consisting of One Room Set upto ceiling
level without roof rights along-with staircase and entrance as a common
rights with others floor owners which is built on property bearing no. D-30,
Ganesh Nagar, Pandav Nagar Complex, Delhi- 92, to me for consideration of
Rs. 11,60,000/- (eleven lakhs sixty thousand only).

4. I state that the accused had taken an earnest money/bayana from me a sum of
Rs. 3,25,000/- (three lakhs twenty five thousand only) to sell the above
mentioned flat and executed an agreement to sell on 14 th day of April, 2018
but the accused has failed to execute the sale deed/ proper transfer document
on and after 30.05.2018. I further state that it is pertinent to mention here that
the accused had denied to sell the said flat to me as accused had already sold
the said flat to the others and cheated me. Copy of said bayana agreement
dated 14.04.2018 is Ex. as CW-2(OSR).
5. I state that the accused had issued two post dated cheques bearing no. 073203
dated 28.06.2018, for Rs. 1,50,000/- and 073202 dt. 28.07.2018 for Rs.
1,75,000/- respectively drawn on Central Bank of India, Acharya Niketan,
Mayur Vihar Phase-I, East Delhi-110091, on account of part payment of
double amount of earnest money.

6. I state that under the instructions of accused, I presented the cheque bearing
no. 073203 dated 28.06.2018, for Rs. 1,50,000/- in my bank namely State
Bank of India, Mother Dairy, Patparganj, Delhi, for encashment, but the said
cheque has returned dishonored with remarks `Payment Stopped By Drawer`
by the banker of accused, vide cheque return memo dt. 30.06.2018. The said
original Cheque and Original Return Memo are Ex. as CW-3 and CW-4
respectively.

7. I state that I accordingly informed the accused, about fate of said cheque, and
demanded payment of said cheque. However, the accused has made excuses
for non-payment said cheque amount till date.

8. I state that as I got to know that I was cheated by the accused as the accused
has already sold the said flat to the other person, on the other hand the
accused has executed an agreement to sell with me, I made a police
complainant against the accused for such cheating but despite to take an
action on said complaint, the police in connivance with accused forced me to
settle the present matter in lump sum amount of Rs. 3,50,000/-(Rs. three lakhs
fifty thousand only). Copy of complaint is Ex. as CW-5(OSR).

9. I state that the accused had again cheated me and issued a Pro-note of Rs.
3,50,000/- (three lakhs fifty thousand only) in favour of me to settle the
double amount of earnest money and to reimburse the above said amount
including interest of Rs. 25,000/-(twenty five thousand only) and agreed to
pay the said amount into three installment dated 25.07.2018 for Rs. 1,25,000/-
(one lakh twenty five thousand only), 25.08.2018 for Rs. 1,25,000/-(one lakh
twenty five thousand only) and 25.09.2018 for Rs. 1,00,000/-(one lakh only)
respectively on 15.07.2018, whereas the accused is liable to pay double
amount of earnest money as per the agreement dt. 14.04.2018, but the
accused has failed to make the said payment even many requests made by me.
Copy of said pro-note is Ex. as CW-6 (OSR).
10. I state that the accused person is under a legal and moral obligation to make
payment of said cheque amount with the balance amount as per the double
amount of earnest money to me, which the accused person has failed to pay
me till date.

11. I state that the accused deliberately and willfully started to evade me and
whenever I used to call over telephone the accused either refused to take the
call and/or pretended to be busy in some work and whenever I tried for a
meeting and requested for a meeting so the same matter could be resolved and
sorted out the accused dishonestly avoided and never tried to meet and
pretended to be busy or out of station on one pretext or other.

12. I state that I have sent a legal notice dated 28 th July 2018 and called upon the
accused to make the payment of the amount covered by the dishonored
cheque. I further state that the said notice was sent to the accused by Speed
Post and the same is duly served upon the accused. I further state that the
Legal Notice dated 28.07.2018, Original Postal receipts and Original Proof of
Delivery of the said legal notice are Ex. as CW-7, 8 & 9 respectively.

13. I state that the despite service of above said legal notice, the accused has not
taken any steps to liquidate his liability and has failed to make payment me
towards the amount covered under the said Cheque, within the statutory
period of 15 days or thereafter but the accused has sent a reply to the legal
notice dated 28.07.2018 and denied his liability towards me to avoid for
making the payment and to usurp the above said amount. Copy of reply to the
notice is Ex. as CW-10 (OSR).

14. I state that the issuance of cheque by the accused is an act which has been
done deliberately, mischievously & malafidely with an intention to cheat me,
even at the time of issuance of the said cheque as the accused was aware of
the fact that on presentation the cheque, the cheque would never be honored
because of Payment Stoppage, which in turn caused unlawful gain to the
accused and unlawful loss me, which is unethical and unprincipled and illegal
in nature.

15. I state that the accused has issued the aforesaid cheque and performed
contrary to his assurances and promises extended and the entire camouflage
woven by the accused caused a great hardship to me and led to financial
losses, as a considerable amount has been devoured by the accused.
16. I state that the accused has committed the offence which attracts the penal
provision given U/s. 138/142 of Negotiable Instruments Act and is also liable
to be prosecuted U/s. 406/ 420 of the Indian Penal Code. I further state that
the accused liable to be prosecuted under the penal provisions of Indian Penal
Code & Negotiable Instruments Act.

17. I state that in view of the facts and circumstances, I have a cause of action and
right to file the present complaint. I further state that the cause of action arises
in favour of me when the agreement to sell/ bayana was executed by the
accused, it further arise when the accused denied to handover the flat in
question to me on 30.05.2018 as he already sold the flat the other and cheated
me, it further arises when the accused issued two post dated cheques for
reimburse the double amount of earnest money out of which one cheque
issued dated was 28.06.2018, and the same was dishonored on 30.06.2018, it
further arise when I made a police complainant against the accused, it further
arises when the accused issued a pro-note of Rs. 3,50,000/- to settle the
matter in lumpsum and again cheated me, it further arises when the accused
again failed to make the payment to me. I state that it further arises in favour
of me when, on the expiry of the notice period, it further arises when the
accused sent a reply to the legal notice and denied his liability to make the
payment to usurp the money of me. I further state that it further arises as
accused has not come forward to pay the amount relating to the dishonored
cheque. I state that it is still subsisting and continuing in nature. I further state
that this Hon’ble Court has jurisdiction to try and adjudicate upon the present
complaint.

18. I state that I have complied with all the requirements of the Section 138 of the
Negotiable Instruments Act, 1881 as amended up to date namely the cheque
in question were present within the period of its validity, the demand for the
payment via notice was made to the accused on 28 th July 2018 i.e. within the
fifteen days of the date of receipt of information regarding the dishonoring of
the cheque. I further state that the accused has failed to make the payment
within 15 days of the said notice as given in notice. I further state that the I
have approached this Hon’ble Court within one month of the date of cause of
action. I further state that the complaint is therefore within the period of
limitation.

19. I state that the stipulated court fee is attached with the present complaint.
20. I state that this Hon’ble Court has the jurisdiction to entertain and try the
present complaint because the offence is committed within the jurisdiction of
this Hon’ble Court. I further state that the dishonored cheque was drawn on
Central Bank of India, Acharya Niketan, MayurVihar Phase-I, East Delhi-
110091 and the same was deposited by me in my bank namely State Bank of
India, Mother Dairy, Patparganj, Delhi and the intimation regarding the
dishonor of the said cheque was also given by the said banks and as such the
offence has been committed within the jurisdiction of this Hon’ble Court.

21. I state that I reserve my right to file a separate suit for recovery of due amount
as per the provisions of CPC.

DEPONENT

VERIFICATION:-
I, the above named deponent, do hereby state and verify that the contents of my
above affidavit are true and correct to the best of my knowledge and nothing has
been concealed there-form.
Verified at Delhi on August, 2018.

DEPONENT