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
Shahjalal Islami Bank Limited
Dhaka Main Branch
58, Dilkusha Commercial Area
Dhaka – 1000
Bangladesh
Represented by:
Mr. X
Son of Late Y
Senior Executive Officer
Age __________ years
Shahjalal Islami Bank Limited
Dhaka Main Branch
58, Dilkusha Commercial Area
Dhaka – 1000
Bangladesh
COMPLAINANT
-Versus-
1. Z Cement Limited
Suite # 1307, Senakalyan Bhaban
195, Motijheel Commercial Area
Dhaka – 1000
And
2. Mr. A
Chairman
Z Cement Limited
Suite # 1307, Senakalyan Bhaban
195, Motijheel Commercial Area
Dhaka – 1000
Other address:
Mr. A
Age ________ years
Son of B
Chairman
Modern Cement Limited
1, Kadamtali, Shaympur
Dhaka – 1204
And
3. Mr. C
Managing Director
Z Cement Limited
Suite # 1307, Senakalyan Bhaban
195, Motijheel Commercial Area
Dhaka – 1000
Other address:
Mr. C
Age _______ years
Son of B
Managing Director
Z Cement Limited
1, Kadamtali, Shaympur
Dhaka – 1204
And
4. Mr. D
Director
Z Cement Limited
Suite # 1307, Senakalyan Bhaban
195, Motijheel Commercial Area
Dhaka – 1000
Other address:
Mr. D
Age __________ years
Son of B
Director
Z Cement Limited
1, Kadamtali, Shaympur
Dhaka – 1204
And
5. Mrs. E
Director
Z Cement Limited
Suite # 1307, Senakalyan Bhaban
195, Motijheel Commercial Area
Dhaka – 1000
Other address:
Mrs. E
Age 43 years
Wife of Md. F
Director
Z Cement Limited
1, Kadamtali, Shaympur
Dhaka – 1204
6. Mrs. G
Director
Z Cement Limited
Suite # 1307, Senakalyan Bhaban
195, Motijheel Commercial Area
Dhaka – 1000
Other address:
Mrs. G
Age ________ years
Daughter of B
Director
Z Cement Limited
1, Kadamtali, Shaympur
Dhaka – 1204
ACCUSED
Place of occurrence:
Shahjalal Islami Bank Limited
Dhaka Main Branch
58, Dilkusha Commercial Area
Dhaka – 1000
Bangladesh
The humble petition on behalf of the complainant most respectfully-
SHEWETH:
1. That the complainant is a Banking company incorporated with Limited liability in Bangladesh under the relevant Companies Act and duly carrying on banking business in Bangladesh under the relevant laws having its Branch Office at the address given in the cause title (hereinafter referred to as the “Complainant”).
2. That the accused No. 1 is 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 production of cement and marketing of the same. Accused No.2 is the Chairman of accused No. 1. The accused No.2 has the addresses as given in the cause title. The accused No.3 is the Managing Director and acts on behalf of the accused No.1 for its operation and accused No. 4, 5, and 6 are the directors of the Company and they have addresses as given in the cause title. The addresses of the accused No.1, 2, 3, 4, 5, and 6 are the correct addresses to the best knowledge of the complainant.
3. That pursuant to the request of the accused No.1, the complainant restructured Izara Facility of Tk. 452.22 lac (taka four hundred fifty two lac twenty two thousand) only in favour of the accused No. 1 vide Sanction Letter No. SJIBL/DM/INV/2005/17417 (A) dated 27.09.2005 and renewed with enhancement of Bai-Muajjal-Commercial-TR (Revolving) Investment Facility from taka 360.00 lac (Taka three hundred sixty lac) only vide Sanction Letter No. SJIBL/DM/INV/2006/5933 (A) dated 30.03.2006, which was duly accepted by the accused No.1.
4. That the accused No.1 availed the said investment facility from the complainant in full. According to the Sanction Letter No. SJIBL/DM/INV/2005/17417 (A) dated 27.09.2005, the investment facility amount along with profits shall be payable in 5 years from 01.10.2005 to 30.09.2010 by 60 (sixty) installments of Tk. 11.00 lac (Taka eleven lac) only each month. And as per Sanction Letter No. SJIBL/DM/INV/2006/5933 (A) dated 30.03.2006, the investment facility amount along with profits under the Sanction Letter shall be payable by making payments of partially or at a time within the validity period of 31.03.2007.
5. That accused No. 1 represented by accused No.2 and 3 issued following 4 (four) cheques for an aggregate amount of Tk. 98,14,000.00 (Taka ninety eight lac fourteen thousand) only in favour of the complainant in order to adjust partial investment liabilities of the accused No.1 with the complainant. All the issued cheques were drawn on the bank current account No. 11100004458 maintained with Shahjalal Islami Bank Limited, Dhaka Main Branch, particulars of the cheques are given below:
| Cheque No. | Dated | Amount | Date of dishonour |
| 035786 | 28.02.2007 | Tk. 24,53,500.00 | 26.06.2007 |
| 035787 | 29.03.2007 | Tk. 24,53,500.00 | 26.06.2007 |
| 035788 | 30.04.2007 | Tk. 24,53,500.00 | 26.06.2007 |
| 035789 | 30.05.2007 | Tk. 24,53,500.00 | 26.06.2007 |
| Total | Tk. 98,14,000. 00 | ||
6. 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, Dhaka Main Branch issuing the memos with the remark “insufficient funds” on the date as mentioned above i.e. 26.06.2007.
7. That observing reluctance of the accused to make payment of the cheques amount, the complainant served legal notices dated 10.07.2007 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. 98,14,000.00 (Taka ninety eight lac fourteen thousand) 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).
8. The postal department returned one notice addressed to the accused No.2 remarking ‘returned due to the absence of the receiver’ for one of the address Mr. A, Son of B, Chairman, Z Cement Limited, 1, Kadamtali, Shaympur, Dhaka – 1204. The postal department returned one notice addressed to the accused No.3 remarking ‘returned due to the absence of the receiver’ for one of the address Mr. C, Son of B, Manging Director, Z Cement Limited, 1, Kadamtali, Shaympur, Dhaka – 1204. The postal department returned one notice addressed to the accused No.4 remarking ‘returned due to the absence of the receiver’ for one of the address Mr. Md. Shamsur Rahman, Son of B, Director, Z Cement Limited, 1, Kadamtali, Shaympur, Dhaka – 1204. The postal department returned one notice addressed to the accused No.5 remarking ‘returned due to the absence of the receiver’ for one of the address Mrs. E, wife of Mr. Md. F, Director, Z Cement Limited, 1, Kadamtali, Shaympur, Dhaka – 1204. The postal department returned one notice addressed to the accused No.6 remarking ‘returned due to the absence of the receiver’ for one of the address Mrs. G, daughter of Mr. B, Director, Z Cement Limited, 1, Kadamtali, Shaympur, Dhaka – 1204.
9. 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.
10. 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).
11. That in the instant case by issuing the said 4 (four) cheques and the subsequent dishonour of the same for ‘insufficient of funds’ the accused No.1 represented by accused No.2 and 3 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.4, 5, 6 being the directors 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 4 (four) cheques for the reason ‘insufficient funds’. That the complainant served legal notice(s) upon the accused Nos. 1, 2, 3, 4, 5 and 6 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).
12. 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 Nos. 1, 2, 3, 4, 5 and 6 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 Honourable Court may graciously be pleased to take cognizance of offence, issue warrants of arrest against the accused Nos. 2, 3, 4, 5 and 6 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.