IN THE COURT OF DISTRICT & SESSION JUDGE,

.............. COURTS, MUMBAI

Revision petition No.      /XXXX

XXXXXX & ANR                                                 ....REVISIONIST

                                                Versus

XXXXX Ltd.                                                      ....RESPONDENT

INDEX

DATE:                 

                                                                   REVISIONIST

PLACE:                                             THROUGH

                                                                                                COUNSEL

IN THE COURT OF DISTRICT & SESSION  JUDGE,

.............. COURTS, MUMBAI

Revision petition No.      /XXXX

XXXXXXX & ANR                                                 ....REVISIONISTS

                                                Versus

XXXXXX Ltd.                                                   .....RESPONDENT

                                        MEMO OF PARTIES

1.   Smt. XXXXXXXX

W/o Sh. XXXXXXXXXX

Residing at X-X, X Floor,

XXXXXXXX (Petitioner/Accused No. 1)

2.   XXXXXXXX International,

X-XX, XXXXXXXXX,

New Delhi (Petitioner/Accused No. 2)

Through Authorised Signatory and Partner

Smt. XXXXXXXX

                                                                             ........REVISIONISTS

V/S

XXXXXX Limited,

Registered office at:-

X Floor, X-X, XXXX, Mumbai                      

.........RESPONDENT

Date-                                           

........REVISIONISTS

Delhi                                    Through

                                                                  COUNSEL

IN THE COURT OF DISTRICT & SESSION  JUDGE,

.............. COURTS, MUMBAI

Revision petition No.      /XXXX

XXXXXXXX & ANR                                              ....REVISIONIST

                                                Versus

XXXXX Ltd.                                                      .....RESPONDENT

                                            LIST OF DOCUMENTS

1.   Copy of order dt XX/XX/XXXX passed by the Court.

2.   A true copy of the application u/s 143 A of NI Act filed by Respondent/ complainant in the court below.

3.   True copy of the Complaint filed by the respondent

DATE:

                                                                             REVISIONIST

PLACE:                                             THROUGH

                                                                                                COUNSEL

IN THE COURT OF DISTRICT & SESSION JUDGE,

.............. COURTS, MUMBAI

Revision petition No.      /XXXX

IN THE MATTER OF:-

XXXXXX & ANR                                                   ....REVISIONISTS

                                                Versus

XXXXXX Ltd.                                                   .....RESPONDENT

REVISION PETITION U/S 397 READ WITH 399 OF Cr.P.C. ON BEHALF OF THE REVISIONIST AGAINST THE ORDER OF LD. M.M DATED XX/XX/XXXX PASSED BY SH. XXXXXXX, MM, X COURT, ESPLANADE, MUMBAI IN COMPLAINT CASE NO. XXXXXX/XXXX U/S 138 NI ACT, IN “XXXXX LTD. VS. XXXX & OTHERS”

MOST RESPECTFULLY SHOWETH:-

1.  That the present revision is filed before this Hon’ble Court against the order dated XX/XX/XXXX in the matter as under titled “XXXXX LTD. VS. XXXXXX & OTHERS” vide case No. COMPLAINT CASE NO. XXXXXX/XXXX U/S 138 NI ACT pending before Hon’ble court Sh. XXXXXX, MM, X COURT, ESPLANMADE, MUMBAI MM North District and the following order-

1) The application on behalf of complainant vide Section 143-A of the N.I. Act is allowed.

2)  The accused is directed to deposit 20% of the amount of the cheques to the complainant to the tune of Rs. XX,XX,XXX/- within a period of XX days.”

A true copy of the impugned order dt XX/XX/XXXX passed by the Court below is annexed herewith as ANNEXURE P/1 herewith.

2.   That the respondent filed a complaint U/s 138 of Negotiable Instruments Act against the petitioner and 5 other accused persons including company, therein on XX/XX/XXXX and impleaded as accused persons as under:

i.             XXXXXX International, X-XX,XXXXX, New Delhi as Accused no. 1;

ii.       Smt. XXXXXXXX D/O XXXXXXX, X-XX,XXXX. New Delhi-110074, Accused no. 2 (Petitioner no. 2 herein)

Residing at X-X, XXXXXX-XXXXXX;

iii.        Ms. XXXXX, Authorised Signatory and Partner of XXXXXXX International, XXXXX, New Delhi as Accused no. 3;

iv.         Ms. XXXX D/O XXXXXX, Partner of XXXXXX International, XXXXXXXX New Delhi-110074, Accused no. 4

Residing at XXX,XXXXXXXX, Rajasthan-306103;

v.         Mr. XXXXXX S/O XXXXXXXX Partner of XXXXXX International, X-XX, XXXXX New Delhi-110074, Accused no.5

Residing at XX, XXXXXXXX, Delhi-110085;

vi.   Mr. XXXXXXX of XXXXXX International, X-XX, XXXXXXX New Delhi-XXXXXX, Accused no.6

Residing at XX, XXXXXXX-XXXXXX.

3.   That after summoning the accused persons, the plea regarding the guilt was recorded. The plea of guilt of accused no. 3 to 6 were recorded on XX/XX/XXXX, while the plea of the accused no.2 was recorded on XX/XX/XXXX. In simple words, the plea of the accused no. 3 to 6 was recorded before XX/XX/XXXX and the provisions of section 143-A of N.I is made effective from XX/XX/XXXX.

4.   That all the accused persons pleaded not guilty.

5.   That on XX/XX/XXXX, the respondent/complainant filed an application U/s 143-A of N.I. Act for compensation to the respondent. It is important and relevant to mention here that the prayer of the said application u/s 143-A filed by the respondent is as follows:

“4. Prayer Clause:- It is humbly prayed on behalf of the Complainant Company that:

c. This Hon’ble Court be pleased to direct the Accused no. 1 and 2 to pay an amount of Rs. XX,XX,XXX(Rupees XXXXX Lakhs XXXXXXX Thousand XXXXXX Hundred and XXXXX only) towards the interim compensation to the Complainant;

d. any other Order in interest of justice, so as to prevent the abuse of process of Law

And for this Act of kindness the Complainant Company shall ever pray.”

In simple words the complainant company claimed the interim compensation from the accused no. 1 and 2 only did not seek any compensation from other accused persons i.e., accused no.3 to 6.

A true copy of the said application u/s 143 A of NI Act is annexed herewith as ANNEXURE P/2.

A true copy of the Complaint filed by the respondent is annexed herewith as ANNEXURE P/1, herewith.

6.   That the said application of the respondent was allowed by the Ld. M.M Sh. XXXXXXXX, MM, XX COURT, ESPANMADE, MUMBAI MM North District, court below vide order dt- XX/XX/XXXX directing the petitioner to pay to the respondent a sum of Rs. XX,XX,XXX/- within a period of 60 days by applying wrongly the judgment namely  ‘Ajay Vinod Chandra Shah V/s. The State of Maharashtra & others in Writ Petition NO. XXX/XXXX dated XX/XX/XXXX’.

7.   That being aggrieved by the aforesaid order dt- XX/XX/XXXX, the petitioners hereby prefer the present petition on the following, amongst other, grounds, without prejudice to each other:-

GROUNDS

A.   Because the order of the court below is not tenable both in facts and law of the present case and thus, liable to be set aside;

B.  Because the court below did not consider the judgment of the Hon’ble High Court in right perspective and took an erroneous view of the said judgment resulting in the passing of the impugned order;

C.  Because the Ld. M.M failed to appreciate the judgement of Hon’ble High Court of Mumbai that in para 12 of the said judgment it is observed as under:

“12. The submissions of Mr. Jha that it is to be made applicable prospectively and not retrospectively can be accepted only to the extent of date of passing order by the judge. The word ‘retrospective’ is to be understood or read with meaningful, purposive interpretation. It is incorrect to accept that it is to be made not applicable to the cases which are filed only after XX/XX/XXXX and not applicable to the cases pending earlier in the trial as well as appellate Court. Huge number of cases under section 138 of the Act are pending in the Court. In these cases, if the pleas are recorded or charge is not framed, then the trial court can invoke its powers under section 143A after XX/XX/XXXX and can impose interim compensation which shall not exceed 20% of the amount of cheque. Same is the case in appeals. If the appeals are pending, the Court can pass interim orders under section 148 which states—“ the appellate court may order the appellant to deposit such sum which shall be minimum twenty percent of the fine or compensation awarded by the trial court.”

                                                (EMPHASIS SUPPLIED)

D.  Because the court below erred in considering the fact that the said judgment i.e., Ajay Vinod Chandra Shah Vs. The State of Maharashtra & another does not cover the present case as the said judgment says that the court may invoke its power U/s 143A to grant the compensation as introduced by the Amendment to the said section w.e.f. XX/XX/XXXX as the said judgment says that the compensation may be granted in cases where charge has not been framed against the accused;

E.  Because the court below failed to appreciate that in the present case there are six accused persons out of whom the plea of 4 accused persons had already been recorded on XX/XX/XXXX well before XX/XX/XXXX and the plea of the petitioner was recorded on XX/XX/XXXX i.e., after XX/XX/XXXX, hence the said judgment does not apply to the present case;

F.   Because the court below failed to appreciate that the direction in the present case to pay compensation to the respondent/complainant is made against the petitioner only while there are 4 other accused persons in the present case since all the accused persons’ liability cannot be put on one accused person, as such the order impugned is liable to be set aside;

G.  Because as held in S.V. Mazumdar & Anr. Vs. Gujarat State Fertiliser Co Ltd. persons of three categories are liable under section 141 NI Act namely:-

“The three categories of persons covered by section 41 are as follows:

1.   The company which committed the offence.

2.   Everyone who was in charge of and was responsible for the business of the company.

3.   Any other person who is a director or a manager or a secretary or officer of the company with whose connivance or due to whose neglect the company has committed the offence”.

(EMPHASIS SUPPLIED)

Since in the present case, the respondent himself has impleaded 4 other persons as accused in the case, it is undisputed clearly that the case of the respondent/ complainant is that all the 5 other accused are liable to the company and hence, the present petitioner cannot be burdened with the liability of all the other accused persons. Hence the order of the trial court is bad in law and liable to be set aside.

8.   That the petitioner has not filed any other similar petition before any other court say Hon’ble High Court or Supreme court of India.

9.  That the annexures filed along with the present petition are true and correct copies of their originals/ copies.

10.  That the petitioner has no other remedy except to file the present petition and in case the present petition is not allowed, grave injustice shall be caused to the petitioner.

                                        PRAYER:

It is, therefore, most respectfully and humbly prayed that this Hon’ble Court may kindly be pleased to set aside order dated XX/XX/XXXX in the matter as under titled “XXXXX Ltd. Vs. XXXXXXXX International & Others” vide COMPLAINT CASE NO. XXXXXX/XXXX U/S 138 NI ACT pending before Hon’ble court of Sh. XXXX, MM, X Court, Esplanade, Mumbai MM, North District, in the interests of justice.

Any other relief deemed fit or proper in the facts and circumstances of the case may also be passed in favour of the petitioner/ Appellant and against the respondent to do justice.

Date-                                                       

REVISIONIST

Delhi                                Through

                                                                          COUNSEL

IN THE COURT OF DISTRICT & SESSION  JUDGE,

.............. COURTS, MUMBAI

Revision petition No.      /XXXX

XXXXXXX & ANR                                                 ....REVISIONIST

                                                Versus

XXXXX Ltd.                                                      .....RESPONDENT

AFFIDAVIT

Affidavit of Smt. XXXXX W/o Sh. XXXXXXXXX, (Petitioner/Accused No.1) & authorized of accused no.2, Residing at X-X, X Floor, XXXXX, XXXXXX,

I, the above-named deponent, do hereby solemnly affirm and declare as under:

1.   That the deponent is one of the partners of Revisionist No.2 and as such is the present petition is being filed through the deponent who is the revisionist No.2 in the above noted case, which is filed before this Hon’ble Court and is conversant with facts and circumstances of the case.

2.   That the accompanying revision has been drafted by my counsel as per my instructions, which have been explained to me in vernacular also and the same are true and correct and the contents of the same may please be read as part and parcel of this affidavit and the same has not been reproduced for the sake of brevity.

DEPONENT

VERIFICATION:-

Verified at Delhi on this    day of XXX, XXXX that the contents of para 1 to 2 above are true and correct and nothing has been concealed there from.                                                                   

                                       DEPONENT

           IN THE COURT OF DISTRICT & SESSION  JUDGE,

.............. COURTS, MUMBAI

Revision petition No.      /XXXX

IN THE MATTER OF:-

XXXXXXX & ANR                                                 ....REVISIONIST

                                                Versus

XXXXXX Ltd.                                                   .....RESPONDENT

APPLICATION U/S 397(1) OF CODE OF CRIMINAL PROCEDURE FOR STAY OF THE OPERATION OF IMPUGNED ORDER DT XX/XX/XXXX IN THE MATTER AS UNDER TITLED “XXXXXXXX LTD. VS. XXXXXXXX INTERNATIONAL & OTHERS” VIDE COMPLAINT CASE NO. XXXXXX/XXXX U/S 138 NI ACT PENDING BEFORE HON’BLE COURT OF SH. XXXXXXXXX, MM, XX COURT, ESPLANADE, MUMBAI MM, NORTH DISTRICT, IN THE INTERESTS OF JUSTICE.

MOST RESPECTFULLY SHOWETH:

1.   That the applicants have filed the accompanying Revision petition u/s 397 of Criminal Procedure Code, the contents of the same may be read as part of the present application as the same are not being repeated here for the sake of brevity.

2.   That the applicants submit that the applicants/ revisionists have a strong prima facie case on facts and law and very likely to succeed in the revision.

3.   That the balance of convenience is also in favor of the applicants/revisionists as the revision is based on the interpretation of the law and application thereof to the present case.

4.   That the applicants submit that they shall suffer irreparable loss and injury and gross injustice shall be caused to the applicants/ revisionists if the proceeding in the court below are not stayed during adjudication of the accompanying Revision petition.

It is, therefore, most respectfully prayed that this Hon’ble Court may kindly be pleased to stay the operation of impugned order dt XX/XX/XXXX in the matter titled “XXXXXXX LTD. VS. XXXXXXX INTERNATIONAL & OTHERS” vide Complaint Case NO. XXXXXX/XXXX U/S 138 NI ACT pending before Hon’ble Court of Sh. XXXXXX, MM, XX Court, Esplanade, MUMBAI MM, in the interests of justice till decision of the accompanying revision petition, in the interests of justice.

          Any other relief deemed fit or proper may also be passed in favour of the applicants/ revisionists, to meet the ends of justice.

Date-

                                                        REVISIONIST

Delhi                                Through

                                                                          COUNSEL

IN THE COURT OF DISTRICT & SESSION  JUDGE,

.............. COURTS, MUMBAI

Revision petition No.      /XXXX

XXXXXXXX & ANR                                              ....REVISIONISTS

                                                Versus

XXXXXXX Ltd.                                                 .....RESPONDENT

AFFIDAVIT

Affidavit of Smt. XXXXXX W/o Sh. XXXXXX, (Petitioner/Accused No.1) & authorized of accused no.2, Residing at X-X, X Floor, XXXXXX, XXXXXX,

I, the above-named deponent, do hereby solemnly affirm and declare as under:

1.   That the deponent is one of the partners of Revisionist No.2 and as such is the present petition is being filed through the deponent who is the revisionist No.2 in the above noted case, which is filed before this Hon’ble Court and is conversant with facts and circumstances of the case.

2.   That the accompanying revision has been drafted by my counsel as per my instructions, which have been explained to me in vernacular also and the same are true and correct and the contents of the same may please be read as part and parcel of this affidavit and the same has not been reproduced for the sake of brevity.

DEPONENT

VERIFICATION:-

Verified at Delhi on this    day of XXXXX, XXXX that the contents of para 1 to 2 above are true and correct and nothing has been concealed there from.                                                        

DEPONENT