Before, The Court of Chief Judicial Magistrate, Patna
Criminal Complaint Case No. ___________ of 2022
Akshay Kumar, Male, Aged about 41 years,
S/O- Sh. Sukhdev Ray, R/O- Nakta Diyara, Devi Mandir,
Dinapur –cum- Khagaul, P.S.- Digha, District-Patna, Bihar-800011
...Complainant
Versus
Surendra Kumar Sharma, Male, S/O- Madhav Sharan, R/O- Chetna
Enclave, I Block, Flat No. 401, C.D.A. Colony, P.S.- Shashtri Nagar,
District-Patna, Bihar-800023
...Accused/Opposite Party
Date of Incident- 16.05.2022
Place of Occurance- Nakta Diyara, Devi Mandir, Dinapur –cum-
Khagaul, P.S.- Digha, District-Patna
Sections under which Offence has been committed: U/S 406/420 of IPC
and 138 of Negotiable Instruments Act
Witnesses:
I. Sh. Kamlesh Kumar, Male, Aged about 52 years,
S/O- Sh. Chandrika Prasad, R/O- Shobha Mani
Sadan, Near Agamkuan Thana, P.S.- Agamkuan,
District-Patna, Bihar
II. Sh. Ajay Shankar Kumar, Male, Aged about 40
years, S/O- Sh. Rajendra Rai, R/O- Nakta Diyara,
Devi Mandir, Dinapur –cum- Khagaul, P.S.-
Digha, District-Patna
III. Smt. Anjali Kumari, Female, Aged about 36 years,
W/O- Akshay Kumar, R/O- Nakta Diyara, Devi
Mandir, Dinapur –cum- Khagaul, P.S.- Digha,
District-Patna, Bihar-800011
Complaint Petition on behalf of
the Complainant abovenamed
before this Hon’ble court
Most Respectfully Showeth:
1. That the Complainant is a resident of Patna and is a law-abiding citizen of
the country.
2. That the Complainant and the Accused are friends for many years and had
good relations with each other.
3. That the facts leading to filing of this instant Complaint Case are as follow:
A. That the Accused approached the Complainant on
05.07.2019 in the morning and he requested the
Complainant to help him with a loan of Rs.30,00,000/-
(Rupees Thirty Lacs Only) and he told the Complainant
that he urgently required the said money for some
business purpose as he is a contractor and he also said
that he will return the same very soon.
B. That the Accused had further assured the Complainant to
return the entire aforesaid amount of Rs.30,00,000/-
within one year from the date of its receipt from the
Complainant with an interest of Rs.6,00,000/- and to
signify genuineness of his assurance, he even agreed to
sign on stamp paper mentioning the particulars of the
total amount of Rs.30,00,000/- (Rupees Thirty Lacs
Only).
C. That it is pertinent to mention that on 08.07.2019 as
agreed both the parties to the complaint, the Complainant,
their common friend Kamlesh and Ajay and the
Complainant’s wife Smt. Anjali met with accused in his
residence and at that time as the aforesaid accused person
told the Complainant that he and the Complainant can
enter into agreement pertaining to friendly loan given to
him by the Complainant. So to ensure there will be clarity
regarding this agreement on this aspect, the Complainant
expressed his interest to enter into friendly loan
agreement with him but as it was around 5 pm in the
evening so the accused person told the Complainant that
he cannot get agreement drafted as he doesn’t have staff
member available at the moment but told the
Complainant that both of them should sign on the blank
document as of now and then he would get agreement
drafted next day from his staff and then the accused said
that they would buy stamp paper and they would together
get the aforesaid friendly loan agreement notarized also.
Therafter, on this faith both, the Complainant and the
Accused signed on the said blank paper as the
Complainant had friendly relation with him over many
years so he placed his reliance on him. However, the
agreement was not drafted. On next date the accused told
the complainant that he has misplaced that blank paper
document which has complainant and his signatures and
once he would find it, then he would either destroy such
paper or hand over same to complainant. A true copy of the
Agreement on Non-Judicial Stamp entered in by the
Complainant and the Accused has been annexed herewith
as Annexure-1.
D. That the Complainant while reposing faith on the
Accused Surendra Kumar Sharma’s promise and
assurance, on 10.07.2019 transferred Rs. 15,00,000/-
(Rupees Fifteen Lacs Only) through State bank of India
cheque number 618462 and then, the Complainant
transferred Rs. 8,00,000/- (Rupees Eight Lacs Only)
through cheque bearing No. 124209 of the Bank of India
and he further transferred Rs.7,00,000/- (Rupees Seven
Lacs Only) through cheque No. 124210 of the Bank of
India to him as friendly loan with 18% interest per annum
to the Accused.
E. That it is further stated to further secure faith, the accused
also issued three cheques bearing cheque No. 116795,
116796 and 116797 each of which cheque is of
Rs.4,00,000/-(Rupees Four Lakhs Only) without
mentioned date as he asked to mentioned date of cheques
later, the value of cheque issued by him as his part legal
liability against the friendly loan taken from the
Complainant by him in his favour is of Rs. 12,00,000/-
(Rupees Twelve Lakhs Only) and he put his signature on
each of the cheque given to the Complainant and it was
as part liability against the total liability incurred on the
Accused.
F. That it is further stated that accused person had initially
told the Complainant that he would be at liberty to
present these cheques for encashment within 6 months
and said that he will make remaining payment to him
through cheque as well within remaining 6 months.
G. That then, after six months when the Complainant
requested the Accused for making payment of the loan
amount due upon him of Rs. 30,00,000/- towards him
then, the Accused owing to covid-19 pandemic sought
some more months and then when the Complainant
approached him to make payment against the aforesaid
loaned amount, then he asked him more time on to the
pretext of lack of money and said that he is facing
financial crunch.
H. That again in 2021, the Accused kept on seeking time and
then on the Complainant’s persistent requests he made
payment of Rs.11,00,000/- in total in through bank
transfer to the Complainant and asked him to put
aforesaid cheques of his bank account in Bank of India
issued by the Accused to the Complainant in the month of
May, 2022 and assured of its honour and encashment and
further also acceded to make payment of Rs. 7,00,000/-
(Rupees Seven Lakhs Only) in cash.
I. That the Complainant had while relying upon the
Accused’s assurance and promise that the said cheques
bearing 116795, 116796 and 11797 of Bank of India
same would be honoured on its presentation and
believing on his assurance, the Complainant presented the
cheque dated 11.05.2022 before his banker i.e. Bank of
Baroda, Branch- Rajender Nagar Colony, Patna, Bihar,
for encashment, however, to the utter dismay of the
Complainant all the aforesaid cheques were returned
dishonoured with remarks “Funds Insufficient” vide
returning memo dated 16.05.2022. A true copy of the
Cheques with their respective Return Memo has been
annexed herewith as Annexure-2
J. That thereafter he contacted the Accused and apprised
about the fate of the aforesaid the cheque, on this he
refused to pay the Complainant any money and
threatened him that he will not be paying his remaining
amount of the loan and threatened him for dire
consequences if he would ever raise demand of such
payment.
K. That the abovesaid the Accused have illegally withheld
the Complainant’s legitimate dues with a malafide
intention and he earlier always falsely assured him to
present the cheques, although there was sole intention of
the Accused to not to clear the dues and even till date he
has not cleared his liability towards the Complainant by
virtue of the friendly loan give to him. Whenever, he
contacted the Accused and asked him to pay the said
amount, he avoided the Complainant on one pretext or
the other. As the Accused had categorically told the
complainant that he would return the remaining amount
within the stipulated time vide cheque once the said
aforesaid cheques handed over by him to the complainant
would get honoured. The complainant on the basis of
faith and instruction of the accused presented the said
cheques.
L. That it is further stated that then, when no alternative left,
the Complainant served a legal notice dated 01.06.2022
to the Accused against the said dishonour of cheque
given for discharge of his aforesaid legal liability which
got duly served to the Accused. A true copy of the Legal
Notice dated 02.06.2022 with speed post receipt and its
tracking report of the legal notice sent to the Accused has
been annexed herewith as Annexure-3, 4 & 5.
M. That then, the Accused sent a reply dated 27.06.2022
with annexures. The Complainant was dismayed to see
that the blank paper on which he got his signature and the
Complainant’s signature and which was purportedly for
only the agreement on friendly loan about time period in
which he was to return of said loan given to him by the
Complainant and consequences for non-payment
however, the Accused concocted the false version of
transaction between the Complainant and the Accused in
order to usurp his hard earned money of Rs.30,00,000/-
(Rupees Thrity Lakhs Only) with Rs.6,00,000/-(Rupees
Six Lakhs Only) so in total of Rs. 36,00,000/- (Rupees
Thirty Six Lakhs Only) being due upon the Accused. A
true copy of the Reply of the Legal Notice received by
the Complainant has been annexed herewith as
Annexure-4.
6. That the dishonor of the abovementioned cheque clearly shows and
establishes that the accused did not intend to honour the amount under the
said cheque so to cheat the complainant and apart from forgery and
concocting false version of the transaction between accused and
complainant so to extort unlawful gain from the complainant.
7. Thus, the accused has therefore committed an offence within the meaning of
section 138 of the NI act,1881, for which he is liable to be prosecuted and
punished.
8. That the accused is guilty of the offence U/S 138 of the Negotiable
instruments Act apart from being guilty of offence of breach of trust, cheating
and forgery enshrined under Indian penal code and in the view of the facts
and circumstance, the complainant has a cause of action and right to file the
present complaint.
9. That the Accused is a guilty of creating forged and fabricated document so
to cheat the Complainant and also extort unlawful gain from him.
10. The cause of action has arisen in the 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 cheque.
11. That the complainant had presented the said said cheque issued by Accused as
on 16/05/2022 on which the said cheque was dishonored at ___________ at
its branch ____________, Patna. Therefore, the Hon’ble court has jurisdiction
to try and adjudicate upon the present complaint.
12. That in the view of aforesaid submissions made herein and in the best
interest of justice, this Hon’ble Court may graciously be pleased to
A. Register the present complaint
under sections 420/406 of the IPC
and 138 of the Negotiable
Instruments Act.
B.Summon, 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,
of Rs.24,00,000/-(Rupees Twenty
Four Lacs Only) under the
provisions of Section 138 read
with Section 141 and 142 of the
Negotiable Instruments Act,1881
as amended by the Negotiable
Instrument laws (Amended and
Miscellaneous Provisions) Act,
2002.
C. The Accused person should be
directed to pay interim
compensation to the complainant of
amount Rs. 2,40,000/- against the
amount of cheque issued by the
accused person.
D. The accused persons should be also
directed to pay compensation to the
Complainant under section 357
CrPC.
And
May be pleased to pass any other
order or direction as this Hon’ble
Court may deem fit in the best
interest of the Petitioner.
And for this the Petitioner shall ever pray
Complainant
Patna Amit Srivastava & Deepak Singh
Dated Advocates
85, Nageshwar Colony, Boring
Road, Patna, Bihar
8920264352.
Before, The Court of Chief Judicial Magistrate, Patna
Criminal Complaint Case No. ___________ of 2022
In the matter of:
Akshay Kumar
...Complainant
Versus
Surendra Kumar Sharma
...Accused/Opposite Party
INDEX
Sl. No. Particulars Page No.
1 Complaint Petition with Affidavit
2 Annexure-1
A truecopy of the Agreement on Non-Judicial
Stamp entered in by the Complainant and the
Accused.
3 Annexure-2
A truecopy of the Cheques with their
respective Return Memo.
4 Annexure-3
A truecopy of the Legal Notice dated
01.06.2022 sent to the Accused.
5 Annexure-4
A truecopy of the Reply of the Legal Notice
received by the Complainant
6 VAKALATNAMA
