BEFORE THE DISTRICT AND SESSIONS COURT, MUMBAI

CRIMINAL REVISION PETITION NO.

OF

IN THE MATTER OF:-

SHRI. HEMANT MANIAR

Manager Kohinoor Sales Agency

... Petitioner

VERSUS

LONGSHINE GLOBAL ENTERPRISES PVT LTD.

Through Sr. Manager and Authorized representative
SHRI JAYPRAKASH YADAV

Respondent

REVISION PETITION UNDER SECTION 397 & 399 CR.P.C.

SEEKING SETTING ASIDE OF THE SUMMONING ORDER
DATED 21.12.2016 PASSED IN C.C.No.3864/SS/2016 TITLED
AS LONGSHINE GLOBAL ENTERPRISE PVT LTD VS HEMANT
MANIAR

BY

SHRI

Y.P.MANATHAKAR,

METROPOLITAN

MAGISTRATE, 7TH COURT, DADAR, MUMBAI

Most Respectfully Sheweth:

1.

That the present petition has been preferred under section 397 & 399
Cr.P.C. by the petitioner arising out of the summoning order dated
21.12.2016 passed in C.C.No.3864/SS/2016 by Shri Y. P. Manathakar,
Metropolitan Magistrate, 7th Court, Dadar, Mumbai (hereinafter referred

as Ld MM) whereby and whereunder the petitioner along with the

respondent were summoned under Section 138 of the Negotiable
Instrument Act (hereinafter referred the N.I.Act). It is submitted that
the impugned order passed by the Ld. MM summoning the petitioner is
erroneous, illegal, and perverse, contrary to law wherein the petitioner is
convicted under section 255(2) of the criminal procedure code for the
offence punishable under section 138 of the Negotiable Instrument Act.
The certified copy of the impugned order dated 21.12.2016 passed by Ld
MM is enclosed herewith as Annexure-

2.

That the brief facts leading to the present petition are hereunder:

2.1 That

the

Respondent

filed

complaint

bearing

no.

3864/SS/2016 U/s 138 and 142 of the NI Act before the Ld

MM against the petitioner, the respondent who is the

manager of the company Longshine Global Enterprise Pvt
Ltd. Alleging that as per the order placed by the petitioner
the respondent had sold supplied and delivered various
bicycle materials(goods) to the petitioner under the
invoice bills dated from 23.04.2010 to 12.11.2010 the
petitioner has duly received the said goods and has not
raised any dispute in respect of its rate ,quality and
quantity. In consideration of the receipt of the said goods
the accused issued cheque no. 000037 dated 15.08.2013
for an amount of Rs 3, 74,995. The respondent presented
this cheque and the same was dishonored and returned
with the remarks insufficient fund on 24.10.2013.
2.2 It is alleged that the respondent sent a Legal Notice of Demand
dated 31.10.2013 through R.P.A.D the notice was served upon
the petitioner on 6.11.2013. Despite of receipt of the said
notice the petitioner failed to make the payment of cheque

amount and alleged that accused committed offence u/s

138 and 142 of the N.I.Act and sought criminal action.

Copy of the Complaint bearing CC No.3864/SS/2016 Act
filed before the Ld MM is enclosed herewith as Annexure-

2.3 That thereafter the petitioner sought bail in the matter.

2.4 That the Petitioner Shri. Hemant Maniar is not the proprietor of
M/s Kohinoor Sales Agency. Shri Maheshchandra k. Maniar is
the proprietor of the said Kohinoor Sales Agency therefore the
Complaint against the petitioner is not maintainable.
2.5 That in the format of the list of documents and witnesses in the
cause

title

the

company

is

represented

through

development manager and authorized representative, but in

the cause title of the Complaint the company is represented
through Sr. Manager. The Company is not represented
through the development Manager as the complaint has
not been filed through the authorized representative the
complaint is not maintainable of this ground also.
2.6 That there is no proper resolution of the company to file the
Complaint

against

the

petitioner.

The

resolution

dated

15.10.2013 is not for filing the Complaint against the petition.

When a case is filed by a company, before the court then the
company has to pass a resolution to file the complaint. An
authorized representative maybe authorized to file cases
against various parties but this does not mean that the
company has authorized the representative to file the
complaint against the petitioner. Under the law what is
required is that there should be a resolution to file the
complaint bearing No. 3864/SS/2016 U/s 138 and 142 of
the NI Act before the Ld MM against the petitioner. That

there is no resolution to this effect and therefore the

Complaint is not maintainable on this ground also.
2.7 That the verification of the complaint is also not done according
to law because the complaint has to be verified U/s 200 of
Cr.P.C. The Verification of the Complaint states best of my
knowledge and belief which is not correct and according to
the law. The complaint has not been verified and hence the
complaint against the petitioner is not maintainable on this
ground also.
2.8 That the para 3 of the complaint states that the goods were
supplied between 23.04.2010 to 12.11.2010. The Complaint
has been filed in November 2014. That the claim to recover
the

money

for

the

goods

supplied

on

23.04.2010

to

12.11.2010 has already become TIME BARRED. Because 3

years have expired and it is surprising that after the expiry of
3 years period the respondent deposited the alleged cheque
into the bank which clearly shows that the entire conduct of
the respondent is full of suspicion and the respondent has not
approached the Honble Court with Clean hands and that the
complaint has been filed with a Malified intention by the
Respondent.
2.9 Another cause of suspicion is that the cheque beared the date
of 15.08.13 and the same was presented on 22.10.13. it is
surprising that for 2 months the alleged cheque was neither
deposited nor informed to the petitioner.

3.

That the respondent has suppressed the correct facts of the

transaction, the correct facts are as under;
3.1

That the goods were supplied between 23/04/2010 to

27/10/2010.

3.2

That the petitioner gave a cheque no. 000037 (drawn on

Bank of Baroda, Crawford market branch) in November 2010
and on the rear side of the cheque the accused mentioned
the Invoice No.s relating to which the payment was due.

3.3

The said invoices which are mentioned behind the cheque

are all of the period April 2010 to October 2010, it means for
the goods purchased between April 2010 to October 2010,
this particular cheque was given. Which was of November
2010, but on the said cheque the date of 15/08/2013 has
been mentioned, which is a subsequent manipulation of the
cheque.

3.4

That the petitioner in-fact handed over the said cheque for
the amount of Rs. 3,74,995/- (Rupees Three Lac Seventy
Four Thousand Nine Hundred & Ninety Five Only) as
Security & simultaneously continued to pay from November
2010 to October 2013 varied amounts for clearing the
payments of the invoices of April 2010 October 2010.

3.5

This is reflected from the ledger of the Petitioner, where

the petitioner has made payments after November 2010
till 0ctober 2013 by subsequent cheques.

3.6

That therefore the respondent, by this cheque is making

attempts to collect the amount twice, which is already
received from the petitioner between November 2010
October 2013. It is submitted that the petitioner did
business up to November 2010 and thereafter he has not
purchased any goods from the respondent, and only made

payment. The petitioner is submitting the Ledger statement

herewith as ANNEXURE-.

3.7

That the respondent sent a notice dated 31/10/2013

demanding the amount of Rs. 3,74,995/- (Rupees Three Lac
Seventy Four Thousand Nine Hundred & Ninety Five Only),
whereas on the same date an amount of Rs. 10,645 /(Rupees Ten Thousand Six Hundred & Forty Five Only) has
been credited in the account of the respondent, but the said
has not been deducted from the total amount of Rs.
3,74,995/- (Rupees Three Lac Seventy Four Thousand Nine
Hundred & Ninety Five Only) and thus the said amount of
Rs. 10,645/- is also being claimed twice.

3.8

It is further submitted that the petitioner has repeatedly

communicated to the Complainant that the said transactions
are not tallying, but the complainants have failed to take any
corrective action for the same.

PRAYER

In view of the above facts and circumstances, it is, therefore, most

respectfully prayed that this Hon'ble Court be pleased to:

(a)

Summon the records of the trial court

(b)

Set aside the summoning order dated 21.12.2016

passed

in

C.C.No.3864/SS/2013

by

Shri

Y.

P.

Manathakar, Metropolitan Magistrate, 7th Court, Dadar,

Mumbai and dismiss the complaint qua the petitioner;

and

(c)

Pass any other order / direction as this Hon'ble Court

deem fit and proper in the facts and circumstances of the
case.

Petitioner
Place
Dated:
Through
Counsel

VERIFICATION

I SHRI. HEMANT MANIAR, the Petitioner do hereby verify

that the Facts of the above Revision are true and correct to the
best of my personal knowledge and information and the legal
pleadings are as advised by the Ld. Counsel.

Verified at

on this

day of

201

PETITIONER
THROUGH

COUNSEL

BEFORE THE DISTRICT AND SESSIONS COURT, MUMBAI

CRIMINAL REVISION PETITION NO.

OF

IN THE MATTER OF:-

SHRI. HEMANT MANIAR

Petitioner
Versus

LONGSHINE GLOBAL ENTERPRISES PVT LTD. Respondent

AFFIDAVIT
I, SHRI HEMANT MANIAR,

do

hereby solemnly affirm and state as under:1. That I am the petitioner in the above matter and am

conversant with the facts and circumstances of the case,

as such, I am competent to swear this affidavit.
2. That I have read and understood the contents of the

accompanying application for condonation of delay,

which has been drafted on my instructions by my
counsel and contents of the same are true.

DEPONENT
VERIFICATION:

Verified at __________ on this ___ day of November, 2016, that the

contents of the above said affidavit are true to my knowledge. No
part of it is concealed therefrom.

DEPONENT

BEFORE THE DISTRICT AND SESSIONS COURT, MUMBAI

CRIMINAL REVISION PETITION NO.

OF

IN THE MATTER OF:-

SHRI. HEMANT MANIAR

Petitioner
Versus

LONGSHINE GLOBAL ENTERPRISES PVT LTD. Respondent

INDEX
SR NO.

PARTICULARS

Criminal Revision Petition under Section

397 & 399 Cr.P.C. alongwith affidavit in
support

Certified copy of the impugned order dated

21.12.2016 passed by Ld MM

Copy of the Complaint bearing No.

3864/SS/2016 U/s 138 and Section 142 of
the N.I.Act filed before the Ld. MM

Copy of the Ledger statement by the

Petitioner

5
6

PAGE NO.

7
8

Vakalatnama

VAKALATNAMA

BEFORE THE DISTRICT AND SESSIONS COURT, MUMBAI

CRIMINAL REVISION PETITION NO.

OF

IN THE MATTER OF:-

SHRI. HEMANT MANIAR

Petitioner
Versus

LONGSHINE GLOBAL ENTERPRISES PVT LTD. Respondent

I, the Petitioner above named do hereby appoint Shri B.S. Banthia,

Sachin Daga, Himanshu Shinde, Deepikaa Kacker, Hemali Bhatia
Advocate High Court, Bombay to act, appear plead for me in the above
matter
In the witness where of I have set my hands to this writing
On this

day of

201
(__________________________)

PETITIONER

(___________________________)
__________________________ADVOCATE