IN THE HON’BLE COURT OF ILAQA MAGISTRATE,
GURGAON COURT, HARYANA
138 NI ACT NO. ______ of 2022
IN THE MATTER OF:
Premedium Pharmaceuticals Private
Limited ...Complainant
Versus
M/s Enegix Healthcare through its Proprieotr
Mr. Raghwendra Singh ...Accused
P.S. – DLF-1, Gurugram Police Station
COMPLAINT UNDER SECTION 138 R/W SEC 142 OF
NEGOTIABLE INSTRUMENTS ACT, 1881 READ WITH SECTION
120B AND 420 OF INDIAN PENAL CODE
MOST RESPECTFULLY SHOWETH;
1. That the Complainant is a Private Limited Company duly
incorporated and registered under Companies Act, 2013 having
its registered office at Plot No. 14, Sector - 20, Dwarka, South
West Delhi – 110075, corporate office at INB-504, 5th Floor,
Tower B, Pioneer Urban Street Square, Sector 62, Golf Course
Extension Road, Gurugram-Haryana 122001 and its warehouse
at – Siyat House, Khasra No. 20 & 22 Village-Kherki Daula NH-8
Gurgaon Haryana, 122003 and is into the business of
manufacturing, distribution and supplies of the pharmaceuticals
products.
2. That the present Complaint is being filed and instituted through
Mr._________, who is Authorized Representative of the
Complainant, duly authorized by way of Board Resolution
passed in the Board meeting held on 15.01.2022 to sign, verify
and file the present Complaint and to take necessary steps.
3. That the Accused is a Sole Proprietor of M/s Enegix Healthcare
and is in the business of distribution and supplies of the
pharmaceuticals products. That the Accused beside being the
proprietor, is also the signatory of the cheque issued for and on
behalf of Enegix Healthcare.
4. That the Accused approached the Complainant Company and
requested to work as its channel partner at Varanasi for
distribution and supply of pharmaceuticals products and
accordingly issued a formal request letter in this behalf
requesting therein to approve them as the stockiest of the
Complainant Company. Thereafter, meetings took place and a
round of negotiation has been done. After finalizing the terms
and conditions and as per the understanding between the
parties between the Complainant and the Accused a
Distribution Agreement dated ______ was executed between the
Parties.
5. That in order to ensure and verify the authenticity of the
business of the Accused, Complainant Company sought Form
20B and 21B from the Accused so as to confirm that the
Accused has required licenses to sell, stock or exhibit for sale,
or distribute by wholesale, Drugs specified in Schedule C and
C(1) excluding those specified in Schedule X.
6. That being a law compliant company, the Complainant
Company has also sought GST registration certificate and
Declaration of Non-Blacklisting from the Accused, before
entering into the aforesaid distribution agreement.
7. That as per mutual understanding between the parties,
Complainant Company obtained a Security Cheque bearing
Cheque no. 040744 of Oriental Bank of Commerce, Newada,
Sunderpur, Varanasi from the Accused in order to secure the
payment of the goods to be supplied so that in case the
Accused would fail to honour the payment against the good
supplied Complainant can present the cheque with the banker
for its encashment.
8. That both the parties entered into transactions from time to
time ranging from 13.06.2020 to 30.01.2021 in accordance with
the understanding and said distribution agreement,
Complainant Company supplied the Products in accordance
with the orders placed by the Accused and raised Invoices for
the same.
9. That the Complainant has supplied the goods as per the terms
and conditions laid down in the distribution agreement and has
not received any complaint of whatsoever nature with regard to
the products supplied or services rendered in this regard. It is
pertinent to note here that the Accused in the beginning
cleared the invoices and as an when raised and sometimes also
made advance payment towards the goods to be supplied.
However, after few transactions between the parties, the
Accused adopted the delay tactics and started delaying the
payments but cleared the invoices raised upto 12.10.2020.
10. That it is important to note here that the Accused have failed to
fulfil their obligation to make payment as per the terms and
conditions of supplies made from and onwards 13.10.2020. The
Complainant requested the Accused Persons several times to
clear the outstanding legitimate dues of Complainant in
accordance with the invoices raised, but the Accused has
miserably failed to honour the request of the Complainant
again and again.
11. That when the assurances, commitments, and promises made
by the Accused proved bogus, fake and having no options left,
the Complainant in order to realise its lawfully outstanding debt
amounting to INR 4,13,014/, presented the aforesaid Security
Cheque bearing Cheque no. 040744 of Oriental Bank of
Commerce, Newada, Sunderpur, Varanasi for its encashment at
its Banker named ICICI Bank Limited, Unit No. 1, Solitaire Plaza,
Mg Road, Dlf Phase-III Gurgaon-122001, Haryana, through its
Directors.
12. That it is to the utter shock, surprise and dismay to the
Complainant that the aforesaid Security Cheque No. 040744
got dishonoured with return memo remark “ ” dated
07.12.2021.
13. That the endorsements “___________” used by the bank, is a
proof beyond doubt that the Accused deliberately closed its
Account so as to avoid the payments. It was the bounden duty
of the Accused Persons to make the payment of the said
dishonoured Cheques amount to the Complainant and an
opportunity has been given to the Accused Persons by inviting
their attention to clear the dishonoured cheques.
14. That the Complainant due to wilful default on the part of the
Accused Persons, issued Legal notice dated 04.01.2022
against dishonoured Cheque No. 040744 in consonance with
the provisions Under Section 138 of the Negotiable Instrument
Act by Speed Post and Courier to the Accused persons, calling
upon the Accused Persons to pay the amount of the
dishonoured Cheque within a period of 15 days from the date of
receipt of the Notice. The aforesaid demand notice was duly
served upon Accused Persons on 08.01.2022.
15. That the Accused, despite of receipt of the Legal Notice dated
04.01.2022 issued by the Complainant through Speed Post
and Courier, have intentionally failed and neglected to clear the
liabilities that have accrued on them as per the provision of
Section 138 of N. I. Act.
16. That it is pertinent to mention that while issuing the afore-
mentioned cheque, the Accused were under a legal obligation
to maintain sufficient funds in the Bank Account and also to
keep bank account operational to honour the issued cheque.
However, the Accused failed to discharge their legal obligation
which clearly shows the malafide intention to defraud
Complainant. The Complainant has been cheated by the
Accused, taking advantage of its innocence, assuming it to be
incapable of taking any action.
17. That the provisions of Section 138 are lawfully extended to the
present situation as the expression "for discharge of any debt
or other liability" and other elements occurring in Section
138 of the Act are fulfilled as on the date of the presentation of
the security cheque there was a debt/liability in presenti in
terms of the distribution agreement and the invoices raised in
this regard.
18. That the dishonour of the Cheque and the reason of dishonour
clearly shows and establishes that the Accused did not intend
to honour the amount under the said Cheque and by the
aforesaid acts, the Accused, have inter-alia committed the
offence punishable under the provisions of section 138 read
with section 142 of the Negotiable Instruments Act, 1881 as
amended up-to date. The dishonouring of Cheque attracts
imprisonment to the extent of two years or with fine which may
extend to twice the amount of the Cheque or with both.
19. That offence committed by the Accused Persons also attracts
the provision of Section 143A of N. I. Act, 1881 and this
Hon’bleCourt is empowered to order the Accused Persons to
pay Interim Compensation to the Complainant as per Section
143A of Negotiable Instrument Act, 1881 amended by
Negotiable Instrument (Amendment) Act, 2018 vide Notification
No. 32 which is effective from 02.08.2018 in case of Dishonour
of Cheque under Section 138 of N. I. Act 1881.
20. That the Accused Persons dishonestly induces and deceived the
Complainant Company to get the delivery of the Products which
clearly shows the malafide intentions of the Accused Persons to
cheat the Complainant since beginning. The Accused Persons in
connivance with each other criminally conspire to induce and
cheated the Complainant Company.
21. That it is stated that the Accused has also inter-alia committed
the offence punishable under Section 120B and 420 of the
Indian Penal Code. The Accused wilfully inducing, deceiving and
criminally conspiring against the Complainant, have also
caused wrongful loss to Complainant and wrongful gain to
himself. Further, the Accused have issued the above said
Cheque in favour of the Complainantwith the malafide intention
not to honour the said Cheque.
22. The Present Complaint has been filed within the period of
limitation.
23. That the Cheque was presented by the Complainant for
encashment with its banker namely ICICI Bank Limited, Unit No.
1, Solitaire Plaza, Mg Road, Dlf Phase-III Gurgaon-122001,
Haryana. Thus, this Hon’ble Court has the jurisdiction to
entertain the present complaint under Section 138 of the
Negotiable Instruments Act, 1881.
24. That the Complainant declares that the matter regarding to the
present dishonoured Cheque against which the present
Complaint has been filed by the Complainant is not pending
before any other Court of law or any other bench of this Hon’ble
Court or other Court.
25. That the Complainant shall rely on witnesses to substantiate
the case before this Hon’ble Court, a list of whereof has been
filed alongwith the Complaint.
26. That the Complainant shall also rely on documents to
substantiate the case before this Hon’ble Court a list of whereof
has been filed alongwith the Complaint.
27. That this Complaint of the Complainant is made bona-fide and
for the end of justice.
PRAYER
Under the circumstances mentioned hereinabove, it is most humbly
prayed that this Hon’ble Court may graciously be pleased to:-
A. INTERIM RELIEF:
a. Pass order for the payment of Interim compensation of INR
82,602/- (Rupee Eighty Two Thousand Six Hundred and Two
only) which is 20% (Twenty Percent) of Cheque bearing No.
040744 dated 06.12.2021 for an amount of INR 4,13,014/-
(Rupees Four Lakh Thirteen Thousand and Fourteen Only) under
Section 143A Negotiable Instrument (Amendment) Act, 2018.
B. RELIEF:
a. Take cognizance of the present Complaint and issue summons
to the accused above named for having committed the offences
under section 138 of the Negotiable Instrument Act, 1881 in
accordance with law, both by way of imprisonment and fine
equivalent to twice the amount of the Cheques for the offences
committed by him;
b. Order for payment of compensation under section 357 of the
Cr. P.C. read with section 117 of the Negotiable Instrument Act,
1881 to the Complainant as follows:-
i) Cheque amount totalling to INR 4,13,014/- (Rupees Four
Lakh Thirteen Thousand and Fourteen Only) alongwith
interest @18% per annum as per clause 5A.7 of the
distribution agreement, till the time of actual payment and
a penalty sum of INR 10,000 for committing such default,
in accordance with Annexure B of the distribution
agreement.
ii) Pleased to order payment of compensation from the fine
amount so as to compensate the Complainant for the loss
incurred by the Complainant due to dishonour of Cheque,
interest thereon, court fee etc. as per law and or;
c. Take cognizance of the present Complaint and issue summons
to the accused above named for having committed the offences
under section 120B and 420 of Indian Penal Code for cheating
and criminal conspiracy against the Complainant Company and
or;
d. Pass any other/further order or orders that this Hon’ble
Courtmay deem fit and proper in the interest of justice.
COMPLAINANT
Through
Vinay Shukla Advocate,
C/o Whitespan Advisory,
LGF-152-P, Sector-38,
Gurgaon – 122002
Mob: 9810624262
E-Mail – vinayshukla@whitespan.in
Dated: 15.02.2022
Place: New Delhi
IN THE HON’BLE COURT OF ILAQA MAGISTRATE, GURGAON
COURT, HARYANA
138 NI ACT NO. ______ of 2022
IN THE MATTER OF:
Premedium Pharmaceuticals Private
Limited ...Complainant
Versus
M/s Enegix Healthcare through its Proprieotr
Mr. Raghwendra Singh ...Accused
AFFIDAVIT
I, Anil Kumar Singh, S/o Shri Abhay Singh, R/o 4/138A, Lalita Park,
Laxmi Nagar, Delhi – 110092, Authorised Representative of
Premedium Pharmaceuticals Private Limited, Complainant Company
having its registered office at B-504, 5th Floor, Tower B, Pioneer
Urban Street Square, Sector 62, Golf Course Extension Road,
Gurugram-Haryana 122001, do hereby solemnly affirm and say as
follows:-
1. That I am the Authorised Person on behalf of the Complainant
Company vide Board Resolution dated February, 2022 and well
conversant with the facts of the case. Hence I am competent
and in a position to swear this Affidavit.
2. That I have read the contents of the accompanying Complaint
which is drafted under my instructions by my counsel and I say
that the contents therein are believed to be true and correct to
the best of my knowledge and the same not being reproduced
herein for the sake of brevity.
DEPONENT
VERIFICATION
I, swear that the contents of my above affidavit are true and correct
to my knowledge and the information derived from the record of the
case and nothing material is suppressed or concealed therefrom.
Verified at Gurgaon on this 18th February, 2022.
DEPONENT
