FORMAT OF CRIMINAL COMPLAINT UNDER SECTION 138 , NI ACT

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, ………. DISTRICT, …………… COURT, NEW DELHI.

COMPLAINT CASE NO.       OF ……….

IN THE MATTER OF:

XYZ

THROUGH AUTHORISED REPRESENTATIVE

Mr. HAA                                                                                                                                                                                                     ……………….COMPLAINANT

Versus

Ms. ABS

W/O Mr.SBS

R/O ……………………

                                                                                                                                                                                             ……………………….ACCUSED

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, ……………….DISTRICT, ……………..COURT, NEW DELHI.

COMPLAINT CASE NO.       OF  ……..

M/S ………………

                                                                                                                                                                                                …………….COMPLAINANT

Versus

Ms. …………………

                                                                                                                                                                                             ……………………….ACCUSED

MEMO OF PARTIES

M/S ……

THROUGH AUTHORISED REPRESENTATIVE

Mrs. ………                                                                                                                                                                                            ……………….COMPLAINANT

Versus

Ms. ….

W/O Mr……………………

R/O …………………

                                                                                                                                                                                                 …………………….ACCUSED

IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, …………, NEW DELHI.

COMPLAINT CASE NO.       OF  2016

IN THE MATTER OF:

M/S ………………………

THROUGH AUTHORISED REPRESENTATIVE

Mrs. …………………………..                                                                                                                                                               ……………….COMPLAINANT

Versus

Ms. ………………..

W/O Mr……………………………

R/O …………………………………..                                                                                                                                                    …………………….ACCUSED

PS………………………………….

COMPLAINT UNDER SECTION 138 READ WITH SECTION 142 OF THE NEGOTIABLE INSTRUMENTS ACT LAWS (AMENDMENT) ACT, 2015 ON BEHALF OF COMPLAINANT

MOST RESPECTFULLY SHOWETH:-

1.That, the complainant is an educational Institution ………………………….., society registered under Societies Act1860 and having its registered office at………..The Complainant is functioning from ….. The present complaint is being filed through Mrs. …… who is working with the complainant and who has been duly authorized vide authority letter dated…………………to file the present complaint, the copy of which is annexed herewith as ANNEXURE  A.

2.  That, this is an institute which provides coaching to thousands of students for various competitive examinations. The complainant takes immense efforts in appointing faculty to impart competitive exam oriented as well as specialized coaching pertaining to different subjects to their students. It is pertinent to mention that due to the nature of educational coaching imparted the complainant institute is completely dependent upon the punctuality as well as the pedagogy of the various faculties appointed.

3.That, the pursuant to application and interview the accused was appointed as …….faculty with the complainant at………  vide appointment letter dated ……….. on a monthly salary of Rs…………… by the complainant to impart specialized coaching in the subject of ………….. to the students of …………… standard. It is pertinent to mention that the accused had in her complete senses and voluntarily accepted the terms and conditions of her employment as faculty whereof she had with her free consent accepted the terms of her employment bond stating “that the employee of the institute once appointed has to provide his/her services to the institute for a minimum period of  one year and if the employee desires to leave the employment then he/she has to serve a notice for a period of 90 days (ninety days) so as to provide a time period to the employer institute to search and appoint a faculty capable of imparting  specialized educational teaching and training in that particular subject. However, if the employee is desirous of leaving employment of the above said institute without tendering the abovementioned notice period then to prevent such a scenario the policy of complainant institute is that the employee tenders to it four postdated cheques equivalent to amount of the employee’s one year salary which is in this case sums Upto Rs…………. to indemnify the institute for the losses suffered by it. the accused was also told categorically that in case she chooses to accept the terms & conditions of her appointment and stands appointed pursuant there to, it shall be construed that she had bound herself inter-alia to serve the complainant for a minimum mandatory period of one year from the date of her joining and then be required to furnish a postdated cheque to indemnify the loss incurred to the complainant due to her untimely departure. 

4. That, the terms and conditions of her appointment inter alia contained a categorical stipulation in clause 7 that the accused person shall ensure to work for a minimum period of one year from the date of her joining and this was mandatory requirement of appointment letter & the mandatory clause was clearly explained to the accused that she had been appointed as faculty ……… vide her appointment letter dated ………….. as stated above, further the accused had signed the indemnity bond dated ……. and had accepted the condition in her complete senses and with her free consent that in case of any default or breach of conditions by her, the institute shall have the right to get the abovementioned postdated cheques encashed, after considering all pros and cons of this mandatory requirement and the consequences in breach thereof, the accused voluntarily accepted the terms and conditions of his appointment that in event of dishonor of the abovementioned cheques the complainant shall have the right to initiate legal proceedings against her & render herself liable to compensate the complainant in a sum of  Rs. ……….. ANNEXURE B

5. That in order to ensure. the interest of the complainant remains protected in the eventuality of breach on the part of the accused of this mandatory  requirement,  the  accused  had  tendered  a  cheque dated …….bearing  No………..  drawn on  …… in favour of the complainant for a sum of  Rs. ………. So as per stipulation in the offer of letter of appointment dated ……  the accused and one Mr. …. (spouse of the accused jointly executed an indemnity bond in favour of complainant confirming that the accused and Mr. ….. shall jointly and severally render themselves liable to indemnify the complainant to the extent of Rs. …..in the event that the accused breaches the mandatory requirement of serving for a minimum period of one year with the complainant.  ANNEXURE C

6. That the accused had been appointed to impart educational coaching in the subject of ……at one of the complainant’s Institute. The accused had absented herself without any intimation or approval of  Management since …… , her absenteeism resulted in pending works and assignment, further she remained uncommunicative to repeated calls made to her by the complainant institute to this ,after receiving institute mail dated ….. & Memo dated …… that it was also categorically mentioned in the said letter that in case you fail to join your duty with immediate effect, your such act of being absent from duty shall be considered as unauthorized absence of duty ,  the accused person’s spouse had replied vide e- mail dated ……… that as the complainant had  accident in year ……hence it had led to a medical problem in her right hand causing restricted movement in the same . She assured the institute that the accused will be able to join her services from ……..

7. That further in reference again she took one month’s leave  from … to …. but after specified date she did not resume her services. So, institute send memo dated …..  to resume her duties but she remained silent then institute send memo dated ….. for negligence of duties and unauthorized absent including mail dated ….. and mail dated ….. notice to breach of bond after this on ….. the accused visited the complainant’s head office situated at ……….along with her husband(Mr. ……..) and as per discussion she was intimated that she was supposed to join her services with the immediate effect after receipt of the letter dated ……. , however, she chose to remain absent and did not join her services. As per letter dated …….. the accused was clearly notified that in case she does not make compliance then a presumption will be drawn that she is no longer interested in being  employed with the complainant. Accordingly, she would be deemed to have abandoned the employment on her own accord. 

8.That from the above said conduct of the complainant it was abundantly clear that the accused voluntarily and consciously left the services of the complainant before the expiry of the mandatory period of one year. As such in terms  of  contract  he  became  liable  to  pay  the  amount  of Rs. ……………. to the   complainant forthwith and discharge her liability. The complainant in terms  of clause………….. of the  Letter  of  Appointment  became  entitled  to  encash  the cheque detailed in para ……. above, which was the amount which the  accused became liable to pay as a result of breach committed by her.

9.That the complainant therefore presented the cheque dated …………bearing No. …………. drawn on ….. , for encashment with complainant’s  banker “…………” at branch at …………………….. but the said cheque returned unpaid/dishonored and received back by the complainant on …………………. along with the Cheque Return Memo from  its banker with the remarks ‘Account closed’.   

10. That having no other option , the complainant was forced to send a legal notice dated ………..to the accused through its counsel on ……………… (at all two addresses of the accused) by speed post and  the professional courier to the complainant within The said notice was duly served upon the accused by speed post on  ………………………   respectively and by professional courier on …….

11.That inspite of the service from both the modes, the accused person has failed to make the payment of the abovementioned cheque that is amount of Rs………………..to the complainant.

12.That,  the accused intentionally and deliberately and with malafide intention has been avoiding making payment of cheque in question and as such the accused has committed offence punishable under the provisions of sections 138/142 of negotiable instruments act and as such the accused is liable to be punished under the provisions of the said  act.

13. That, the cause of action arose on …………., when the complainant was informed that the abovementioned cheque was dishonoured with remarks “insufficient funds” The cause of action further arose on ………………….., when the legal notice was served upon the accused and on ……………. as she failed to comply with the said notice. The cause of action is still continuing.

14. That, this Hon’ble court has the jurisdiction to try and punish the accused in accordance with law because the cheque issued by the accused was presented by the complainant with its bank where it maintains its bank account that is at ………and was returned back dishonored by bank….of complainant vide cheque return memo dated …………….. which falls within the jurisdiction of this Hon’ble court, therefore, the Hon’ble court has the jurisdiction to try and entertain the present complaint.

Prayer

It is most humbly prayed that this Hon’ble court may kindly be pleased to summon and try the accused under the provisions of negotiable instruments act and that she be punished in accordance with the provisions of the said act. In view of the facts and circumstances stated herein above and in interest of justice,

That the complainant, therefore, prays that –

  1.  This complainant be awarded from the accused the said amount of Rs. …../- along with interest @…… p.a. from the date of the issue of the said cheques till the date of payment; and

  1. Any other further order which this Hon’ble court deems fit and proper in the facts and circumstances of the case in favor of the complainant and against the accused in the interest of justice be kindly passed.

Date                                                                                                                                                                                                                                    COMPLAINANT 

Place :                                      

                                                                                 

                                                                                                                                                                            THROUGH 

  

                                                                                                                                                                               AUTHORISED REPRESENTATIVE

ADVOCATE