IN THE COURT OF LD. JUDICIAL MAGISTRATE; GURUGRAM; HARYANA.

CRL. COMPLAINT NO. xxxxx OF 2022.

IN THE MATTER OF :-

XXXXXXXXXXXXXX                              : COMPLAINANT

VERSUS

Xxxxxxxxxxxxxxxxxxxxxxxxxx                           : ACCUSED

D.O.H.: xx.xx.xxxx

EVIDENCE BY WAY OF AFFIDAVIT OF THE COMPLAINANT (CW1)

I, xxxxxxx, AGED ABOUT ___ YEARS, AR OF M/S. xxxxxxxxxx. HAVING ITS REGISTERED OFFICE xxxxxxxxxxxxx, NEW DELHI-10037, DO HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER :-

1.                 That I am the Authorized Representative of the Complainant Company in the complaint and am competent to swear this statement of truth. That I, the Deponent, am well conversant with the facts and circumstances of the case, and hence competent to swear this Affidavit.

2.                 It is state that the Deponent is a company duly incorporated under the provision of the Companies Act, 1956. That since its inception, the Deponent has become India's leading supply chain services company, and provides services through a combination of world-class infrastructure, logistics operation along with the highest quality and cutting-edge engineering and technology capabilities. That the Deponent enjoys high repute in its field of business and caters to clientage at the national and international market.

3.                 It is further state that earlier {at the time of entering into the transaction with the Accused) the Deponent company was a private limited company, however, with time the status of the said Deponent has changed from a private limited company to a limited company, hence, the captioned complaint has been filed as and under the name of "xxxxxxxx", and not Delhivery Private Limited", further, the cheques in question were also issued in the name/favour of "xxxxxxxxxxxxx". The Certificate of conversion of Deponent Company is Ex.CW1/1.

4.                 It is further state that the Deponent Company in the captioned case is represented by its Authorized Representative and Signatory who is duly authorized by Board Resolution. That the said Authorized Representative is duly conversant with the facts and circumstances of the captioned case, including all the transactions and communications which took place between the parties, hence, the said representative is competent to file the captioned complaint and represent the Deponent Company. The Board Resolution is Ex.CW1/2.

5.                 It is further state that the Accused, namely Sh. xxxxxxxxxxx, had approached the Deponent Company raising numerous queries and seeking the supply of services from the Deponent Company, and categorically represented to the Deponent that the Accused is the sole proprietor of "xxxxxxxxxxxx", and is managing its affairs and responsible for its operations and affairs.

6.                 It is further state that subsequent to numerous rounds of discussions between the parties, the Accused had entered into contractual framework with the Deponent Company, and subsequently the Accused had engaged the Deponent Company for providing numerous services.

7.                 It is further state that the Deponent Company having adequate facilities, infrastructure, manpower etc. to provide diversified delivery services was engaged by the Accused for the purpose of providing numerous services, including but not limited to Transportation services, Delivery of goods services etc. (hereinafter to be referred to as the "Services") as and when required by the said Accused.

8.                 It is further state that for the purpose of the supply of the Services by the Deponent Company to the Accused, both the parties had entered into a contractual framework, and had accordingly entered into "xxxxxxxxxx" dated xx.xx.xxxx (hereinafter to be referred to as the "Agreement"), pursuant to which the Deponent Company had agreed to provide the Accused with the required services. That the said Agreement is Ex.CW1/3.

9.                 It is further state that in addition to numerous other terms and conditions between the parties qua the supply of Services by the Deponent Company to the Accused, the essential terms and conditions pursuant the Agreement were as follows:-

-         For B2C Services

The Seller (Accused herein) shall make the payment to the Service Provider (Deponent herein) within 30 (thirty) days from the date of submission of invoice.

All delayed payments will incur a liability of 18% p.a. from the date of realization till actual payment

-         For B2B Services

The Seller agrees to pay the undisputed bills in full within 10 (ten) days of receipt thereof

All delayed payments will be paid along with an interest amount of 18% p. a. from the date of this amount became due till actual realization.

10.            It is further state that the terms and conditions of the said Agreement were the foundation of the transaction which took place between the parties, however, shortly after the execution of the Agreement the Accused at one instance or the other chose to violate the terms and conditions of the said Agreement by delaying the payment of the due amount. That till date the Accused has caused huge and colossal loss to the Deponent Company by not making the payment of the complete due amount to the Deponent Company.

11.            It is further state that during the tenure of the said Agreement, the Deponent Company provided the Accused with the Services as and when required by the Accused. That it is pertinent to mention that the Deponent Company had provided the Accused with top-notch quality of services, and the said services were duly acknowledged by the Accused without any protest or demur of any manner whatsoever. That against the said services provided, the Deponent Company with time raised invoices upon the Accused seeking payment qua the services being provided.

12.            It is further state that against the Services provided and in lieu of the invoices raised by the Deponent Company upon the Accused, the Accused made part payments to the Deponent Company on a running basis with the assurance and representation that the balance due amount shall be shortly paid/remitted to the Deponent Company, however, with time there were numerous issues being faced by the Deponent Company regarding the payment of the due amount as the Deponent Company had to make numerous requests to the Accused seeking payment, and the said Accused chose to remit small amounts towards/in lieu of discharge of its part liability. That against the numerous requests advanced by the Deponent, the Accused kept putting the matter on one pretext or the other for the purpose of delaying the payment of the due amount to the Deponent Company by always assuring that the payment shall be made shortly. That the invoices raised by the Deponent Company upon the Accused are Ex.CW1/4 (colly)

13.            It is further state that accordingly, with time, by xx/xx xxxx, the Accused had availed services of more than an amount of Rs. xx xx from the Deponent Company and had further sought additional services for an amount of more than Rs. xxxxx, hence, in discharge of its part liability the said Accused had handed over 5 (five) cheques to/in favour of the Deponent Company with the assurance that the balance amount shall be remitted by the Accused to the Deponent via bank transfer. That the details of the said cheque are as follows:

14.            It is further state that at the time of the issuance of the said cheques the Accused had categorically represented and assured the Deponent Company that the said cheques shall be duly honored as and when presented. That the total amount qua the said 5 (five) post-dated cheques was Rs. xxxxxxxx/- (INR xxxxxxxxx Lakh). That the said 5 (five) cheques issued by the Accused to the Deponent Company are Ex.CW1/5 (colly.)

15.            It is further state that after the issuance of the said cheques, the Accused at one instance or the other requested the Deponent Company additional time period for presentment of the said cheques with the assurance that the Accused shall be making/remitting part payment (towards the complete outstanding amount) and would accordingly inform the Deponent as to when the said cheques have to be presented in discharge of the payment of the said amount of Rs. xxxxxxxs.

16.            It is further state that with time the amount due and payable by the Accused was more than Rs. xxxxxx, and accordingly, the said Accused requested the Deponent to, with-time, present the said cheques with the representation and assurance that the said cheques as and when presented shall be duly honoured. That accordingly, the said cheques were accordingly presented by the Deponent.

17.            It is further state that as per the mutual talks, in lieu of which the cheques were handed over, the Deponent Company had presented the said cheques being cheques bearing no. xxxxxxxx for an Amount of Rs. xxxxxxx/- dated xx.xx.xxxx drawn at xxxxxxxx, xxxxxxxxxxxxxx, cheque bearing No. xxxxxxxxx for an amount of Rs. xxxxxxxxx/- dated xx.xx.xxxx drawn at xxxxxxxxxxxx, Cheque bearing No. xxxxx for an amount of Rs. xxxxxx/- dated xx.xx.xxxx drawn at xxxxxxxxxxxxi, cheque bearing no, xxxxxxx for an Amount of Rs. xxxxxxxxxx/- dated xxxxxxxxxx drawn at xxxxxxxxxxxxxxx, and cheque bearing no. xxxxxx dated xxxxxxxxx for an amount of Rsxxxxxxxxxx drawn at xxxxxxxxxxx with its banker for encashment, however, to the utter shock and surprise of the Deponent Company the said 5 (five) cheques were dishonored. That despite the fact that the said cheques were issued by the Accused against the discharge of their liability, the said cheques as arid whenever presented were dishonored.

18.            It is further state that the said (I) CHEQUE BEARING NO. xxx FOR AN AMOUNT OF RS. xxxxxxxxx/- DATED xxxxxxxx DRAWN AT xxxxxxxxxxx, (II) CHEQUE BEARING NO. xxxxxxxxx FOR AN AMOUNT OF RSxxxxxxxxxxx/- DATED xxxxxxxx DRAWN AT xxxxxxxxxxxx, (III) CHEQUE BEARING NO. xxxxxxxxxx FOR AN AMOUNT OF RS.  Xxxxxxxxxxxxxxx /- DATED xxxxxxxxxx DRAWN AT xxxxxxxxxx, AND (IV) CHEQUE BEARING NO. xxxxxxxx DATED xxxxxxxxx FOR AN AMOUNT OF RS. xx,xx,xxx DRAWN AT xxxxxxxxxxxxxxxx, MUMBAI were dishonored & were returned back to the Deponent Company with the remarks "Funds Insufficient vide banker's note on xxxxxxxxx. That the CHEQUE BEARING NO. xxxxxxxxx FOR AN AMOUNT OF RS. Xxxxxxxxxx /- DATED xxxxxxxxxxx DRAWN AT xxxxxxxxxxxxx when presented was dishonored & returned back to the Deponent Company with remarks ""Payment Stopped by Drawer on xx.xx.xxxx. That the Bank Return Memos issued by the bank to the Deponent towards/resulting out of the dishonor of the said five cheques are Ex.CW1/6 (colly).

19.            It is further state that the Accused had categorically assured & represented to the Deponent Company that the said cheques would be duly honored as and when presented by the Deponent Company, however, the said assurance/promise was a sheer lie being advanced by Accused to the Deponent Company.

20.            It is further state that till date, the Deponent Company has been made to suffer huge financial losses including loss of opportunities consequential out of the non-payment of the due amount by the Accused. That even after the dishonour of the said cheques, the Accused had assured the Deponent Company that the Accused shall be making payment of the complete cheques amount to the Deponent Company within a period of/around 7 days, and had further assured the Deponent Company that it shall be making part payment towards the discharge of its total/outstanding liability. That despite waiting for the requisite time period, the Accused failed to make payment of the cheques amount, and chose to remit only party payment towards the complete outstanding amount.

21.            It is further state that the Deponent Company has been trying to contact the Accused regularly, however, all such requests of the Deponent Company have gone in vain. That till date, as per the ledger account of the Deponent Company, an amount of/around Rs. xxxxxxxxxxx/- (INR xxxxxxxxxxxxxxx) is due and payable by the Accused to the Deponent Company, this being due payment in lieu of the services provided by the Deponent Company to the Accused. That the Ledger Account maintained by the Deponent Company is Ex.CW1/7.

22.            It is further state that the Accused have misrepresented to the Deponent Company with dishonest intentions on several aspects for which the Deponent Company reserves its right to initiate separate action. That it was to abrupt shudder of the Deponent Company that regardless of the fact that the services of top-notch quality were provided by the Deponent Company as and when requested by the Accused, despite the same the Accused chose to take a volte-face by not abiding by the terms and conditions mutually agreed between the parties.

23.            It is further state that the Deponent Company has been trying to contact the Accused regularly and has been trying to meet its/their officials/representatives on several occasions, however, all such requests of the Deponent Company have gone in vain.

24.            It is further state that axiomatic facts emerged from the above clearly shows that Accused has cheated Deponent Company very cleverly with dishonest & malaflde intention and ulterior motives, and have committed the offences of cheating, breach of trust as well as offence under Section 138 of Negotiable Instrument Act, making themselves liable not only for the double of the amount of the aforesaid cheques along with compensation, but also imprisonment for a term of upto extent of two (2) years as provided under the Act; besides the other offences committed as per provisions enumerated under the Penal Code of India.

25.            It is further state that the Deponent Company herein had issued a legal notice under Section 138 of N.I. Act, 1881 dated xx.xx.xxxx ("Notice") vide email to the Accused by calling upon the Accused to make good the amount under the said cheques to the Deponent Company within 15 days of the receiving of the notice, however, to no success as despite the receipt of the said legal notice the Accused chose not to make payment of the amount of the cheques, and rather chose to send a reply vide email dated xx.xx.xxxx ("Reply") to the Deponent Company wherein the Accused chose to accept its liability of the due amount, however, chose to advance false and frivolous excuses towards the issuance of the said cheques, and further requested additional time period from the Deponent to make payment of the complete due amount. That in response to the said Reply, the Deponent Company had issued/sent an email dated xx.xx.xxxx ("Rejoinder") wherein it categorically refuted the false allegations levelled by the said Accused. That the Notice dated xx.xx.xxxx is Ex.CW1/8 and the Reply dated xx.xx.xxxx is Ex.CW1/9, and further the Rejoinder dated xx.xx.xxxx is Ex.CW1/10.

26.            It is further state that it is evident by the conduct of the Accused that even at the time of issuance of the said cheques, the Accused was having the malafide intentions, and the Accused intentionally did not honor the payment of the said cheques. Hence, the present complaint has been filed by the Deponent.

27.            I hereby state that whatever is stated hereinabove is true and correct to the best of my knowledge.

                                                                        DEPONENT

VERIFICATION:

Verified at New Delhi on ___ day of April, 2024 that the contents of paras 1 to 27 of my above evidence affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed there from.

                                                                                                    DEPONENT