P Leasing and Financial Services Ltd -Versus- Z Builders Limited

BEFORE THE CHIEF METORPOLITAN MAGISTRATE, DHAKA

PETITION CASE NO. __________ OF ________

An application under Section 138 read with Section 140 of the Negotiable Instruments Act, 1881 (as amended);

AND

IN THE MATTER OF

P Leasing and Financial Services Ltd

City Heart (7th Floor)

67, Naya Paltan

Dhaka-1000

Represented by:

Mr. X

Son of Y

Assistant Manager

P Leasing and Financial Services Ltd

City Heart (7th Floor)

67, Naya Paltan

Dhaka-1000

COMPLAINANT

-Versus-

1. Z Builders Limited

House # 64, Road # 07

Dhaka Cantonment

P.S. Cantonment

Dhaka

And

Z Builders Limited

House # 11

Block # D

Road # 17

Banani

P.S. Gulshan

Dhaka

2. Mr. K

Son of Q

Managing Director

Z Builders Limited

House # 64, Road # 07

Dhaka Cantonment

P.S. Cantonment

Dhaka

And

Mr. K

Son of Q

Managing Director

Z Builders Limited

House # 11

Block # D

Road # 17

Banani

P.S. Gulshan

Dhaka

And

Mr. K

Son of Q

Apt # B-4

House # 30

Road # 121

Gulshan

P.S. Gulshan

Dhaka

3. Mrs. R

Wife of K

Chairman

Z Builders Limited

House # 64

Road # 07

Dhaka Cantonment

P.S. Cantonment

Dhaka

And

Mrs. R

Wife of K

Chairman

Z Builders Limited

House # 11

Block # D

Road # 17

Banani

P.S. Gulshan

Dhaka

And

Mrs. R

Wife of K

Apt. # B-4

House # 30

Road # 17

Banani

P.S. Gulshan

Dhaka

ACCUSED

Place of occurrence:

P Leasing and Financial Services Ltd

City Heart (7th Floor)

67, Naya Paltan

P.S. Paltan

Dhaka-1000

The humble petition on behalf of the complainant most respectfully-

SHEWETH:

1. That the complainant is a company limited by shares incorporated under the relevant laws of Bangladesh having registered address as given in the cause title. The complainant carries on it’s non-banking financial activities within the territory of Bangladesh obtaining necessary license from the appropriate authority.

2. That the accused No. 1 is also a company limited by shares, incorporated under the relevant company laws having its registered office at the address as given in the cause title. The accused No.1 is involved in the business of construction of building and flats and marketing of the same. Accused No.2 is the Managing Director of accused No. 1 and acts on behalf of the accused No.1 for its operation. The accused No.2 has the addresses as given in the cause title. The accused No.3 is a director and chairman of the accused No.1 and she has addresses as given in the cause title. The addresses of the accused No.1, 2 and 3 are the correct addresses to the best knowledge of the complainant.

3. That pursuant to the request of the accused No.1, the complainant sanctioned Term Loan of Tk. 3,00,00,000.00 (three crore) only in favour of the accused No.1 vide Sanction Letter No. PLFS/SA-EBL/2005 dated 09.01.2005 and Term Loan of Tk. 5,00,00,000.00 (Taka five croe) only vide Sanction Letter No. PLFS/SA/-EBL/470/2005 dated 04.08.2005, which were duly accepted by the accused No.1.

4. That Loan Agreement dated 19.01.2005 and Loan Agreement dated 07.08.2005 were executed between the complainant and the accused No.1. In both of the Loan Agreements the accused No.2 and 3 were represented the accused No. 1.

5. That the accused No.1 availed the said loans from the complainant in full. According to the Loan Agreement dated 19.01.2005, the loan amount along with interests shall be payable by 72 installments of Tk. 6,41,700.00 (Taka six lac forty one thousand seven hundred) only each. And as per Loan Agreement dated 07.08.2005, the loan amount along with interests under the agreement shall be payable by making payments of installments of Tk. 25,20,430.00 (Taka twenty five lac twenty thousand four hundred and thirty) only each.

6. That accused No. 1 represented by accused No.2 issued following 13 (thirteen) cheques for an aggregate amount of Tk. 1,39,78,290.00 (Taka one crore thirty nine lac seventy eight thousand two hundred and ninety) only in favour of the complainant in order to adjust partial loan liabilities of the accused No.1 with the complainant. All the issued cheques were drawn on the bank current account No. 11100004738 maintained with Shahjalal Islami Bank Limited, Gulshan Branch, particulars of the cheques are given below:

Sl No. Cheque No. Dated Amount Date of dishonour
1. 424051 28.02.2006 Tk. 6,41,700.00 21.06.2006
2. 424052 27.02.2006 Tk. 6,41,700.00 21.06.2006
3. 424053 27.02.2006 Tk. 6,41,700.00 21.06.2006
4. 424054 27.02.2006 Tk. 6,41,700.00 21.06.2006
5. 424055 27.02.2006 Tk. 6,41,700.00 21.06.2006
6. 424056 27.02.2006 Tk. 6,41,700.00 21.06.2006
7. 424057 27.02.2006 Tk. 6,41,700.00 21.06.2006
8. 424058 25.04. 2006 Tk. 6,41,700.00 21.06.2006
9. 424059 25.04. 2006 Tk. 6,41,700.00 21.06.2006
10. 424060 25.05.2006 Tk. 6,41,700.00 21.06.2006
11. 422361 25.03.2006 Tk. 25,20,430.00 21.06.2006
12. 422362 25.04.2006 Tk. 25,20,430.00 21.06.2006
13. 422363 25.05. 2006 Tk. 25,20,430.00 21.06.2006
Total Tk. 1,39,78,290.00

7. That the complainant presented the said cheques for encashment but all the cheques were dishonoured and returned unpaid by the drawee bank, Shahjalal Islami Bank Limited, Gulshan Branch issuing the memos with the remark “insufficient funds” on the date as mentioned above i.e. 21.06.2006.

8. That observing reluctance of the accused to make payment of the cheques amount, the complainant served legal notices dated 16.07.2006 by registered with A/D under section 138 read with section 140 of the Negotiable Instruments Act, 1881 (as amended) upon the accused No. 1, 2 and 3 requesting them to make payment of the aggregate cheque amount of Tk. 1,39,78,290.00 (Taka one crore thirty nine lac seventy eight thousand two hundred and ninety) only to the complainant within 30 (thirty) days of the receipt of the notice with a note that in default, the complainant shall commence criminal proceedings against them under section 138 read with section 140 of the Negotiable Instruments Act, 1881 (as amended).

9. That the notices addressing the accused No.1 were returned by the postal department remarking ‘Left’ on the envelop on 17.07.2006. The postal department returned two notices addressed to the accused No.2 remarking ‘Left’ for both of the addresses ‘Mr. K, Managing Director, ZBuilders Limited, House # 64, Road # 07, Dhaka Cantonment, Dhaka,’ and ‘Mr. K, Managing Director, ZBuilders Limited, House # 11, Block # D, Road # 17, Banani, Dhaka’. The acknowledgement receipt of the notice addressing ‘Mr. Md. Habibul Bashar, Apt # B-4, House # 30, Road 121, Gulshan, Dhaka’ for the accused No. 2 is yet to be received. The notices addressing to the accused No. 3 was returned by the postal department remarking ‘Left‘ on 17.07.2006 for the addresses ‘Mrs. R, Chairman, ZBuilders Limited, House # 64, Road # 07, Dhaka Cantonment, Dhaka’. And the notices addressed to the accused No.3 for the addresses ‘Mrs. R, Chairman, ZBuilders Limited, House # 11, Block # D, Road # 17, Banani, Dhaka’ and ‘Mrs. R, Apt # B-4, House # 30, Road 121, Gulshan, Dhaka’ are yet to be returned. .

10. That none of the accused has come forward to make payment of the cheques amount/notice demanded aggregate cheques amount within the notice stipulated period or till date.

11. That issuing of any cheque in favour of any one and subsequent dishonour due to ‘insufficient of funds’ is a criminal offence on the part of the issuer of such cheque

in accordance with the provisions of section 138 of the Negotiable Instruments Act, 1881 (as amended). And while the issuer of the cheque is a company, the section 138 to be read with section 140 of the Negotiable Instruments Act, 1881 (as amended).

12. That in the instant case by issuing the said 13 (thirteen) cheques subsequent dishonour of the same for ‘insufficient of funds’ the accused No.1 represented by accused No.2 have committed offence under section 138 to be read with section 140 of the Negotiable Instruments Act 1881 (as amended) and are liable to be prosecuted under the said sections. The accused No.3 being the director of the accused No.1 is liable and be prosecuted under section 138 to be read with section 140 of the Negotiable Instruments Act, 1881 (as amended) for dishonour of the said 13 (thirteen) cheques for the reason ‘insufficient funds’.

13. That the complainant served legal notice(s) upon the accused No. 1, 2 and 3 by registered post with A/D which shall be deemed to be duly served as per section 138A of the Negotiable Instruments Act, 1881 (as amended).

14. That in view of the facts and circumstances stated above, this Court may take cognizance in accordance with section 141 of the Negotiable Instruments Act, 1881 and the accused No. 1, 2 and 3 should be brought to justice as provided under section 138 and 140 of the Negotiable Instruments Act 1881(as amended).

Wherefore it is humbly prayed that the Hon’ble Court may graciously be pleased to take cognizance of offence, issue warrants of arrest against the accused No. 2 and 3 and bring them to justice for the offence committed by them and/or pass such other or further order or orders as it deems fit proper.

And for this act of kindness the complainant as in duty bound shall ever pray.

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