Criminal Revision Application No.109 of 2009

21st January, 2010

Petitioner Counsel: Mr. Y. R. MISHRA,Mr. D. A. DUBE
Respondent Counsel: Mr. SURENDRA MITTAL,Mr. P. A. POL

Cases Cited:
M/s. Indo Automobiles Vs. M/s. Jai Durga Enterprises, AIR 2009 S.C. 386 [Para 9]
M. D. Thomas Vs. P. S. Jaleel, 2009 ALL SCR 2768 [Para 11]

JUDGMENT

JUDGMENT :- Against the concurrent judgment and orders in proceedings under Section 138 of the Negotiable Instruments Act. The present Revision Application is filed by the original accused no.3.

2. The three contentions which have been raised by Mr. Mishra appearing in support of this Revision Application are that the notice under Section 138(B) has not been served upon accused no.3. He submits that the accused was at one time a partner of the firm. The accused thereafter had severed his connections with the firm and had no association therewith. Therefore, the complainant was required to serve the notice at the address at which accused no.3 was residing. He states from the record and more particularly from the deposition of the postman, it is clear that the service is not effected on accused no.3 as the packet has come back with an endorsement "not known". Therefore, the pre-condition for proceeding under Section 138 not being satisfied, the complaint was not maintainable. The orders under challenge are required to be quashed and set aside on this ground alone.

3. Alternatively and without prejudice, he submits that in this case, the complainant is one Mahavir Purshottam Bhargve. The accused are M/s. A. A. Khatri & Company, Mr. Abdul Rehman Khatri and the present applicant. However, the applicant had resigned from the partnership in the year 1998. The partnership business may have been continued but had no association therewith personally. Therefore, it is clear that the applicant could not have been proceeded against under Section 138 of the Negotiable Instruments Act, 1881. Even if he is arrayed as an accused, once it is apparent that he has ceased to be a partner, then, his conviction is bad in law. The appeal ought to have been allowed by the lower appellate court, but the same also did not perform its duty in law.

4. The third contention of Shri. Mishra is, that, there were alterations made in the cheque. The amount is altered. Therefore, a request was made to refer the matter to hand writing expert. However that request has been turned down. If there is no alteration in the cheque, then, the complaint was not maintainable as the complainant had failed to prove the essential ingredients of the offence. For all these reasons, this revision application be allowed.

5. On the other hand, Mr. Mittal has supported the impugned judgment.

6. The paragraphs of the trial court and lower appellate court's judgment to which my attention has been invited, discusses all these aspects. In paragraph-12 of the trial court order, the learned Judge referred to the suggestions made by this present applicant that he retired from this partnership way back in the year 1998 and he is not concerned with the firm. However, the learned judge has observed that accused no.3 did not produce any evidence, except his bare words to prove that he retired from partnership. There is no deed of dissolution produced. The cheque admittedly bears the signature of accused no.3. It is also signed by accused no.2. The relevant record of the Registrar of Firms, Extract of which was produced shows that the name of accused no.3 is inserted therein as one of the partners of accused no.1-firm. In the absence of anything to controvert this record, the learned Judge, in my opinion, rightly believed the version of the complainant. He committed no error in relying upon the extracts produced from the registrar of firms.

7. As far as the notice is concerned, once the court found that both accused nos.2 and 3 are partners of accused no.1 and that accused no.3 could not prove that he retired from the firm, then, I do not feel that the learned judge has committed a manifest error resulting in serious miscarriage of justice by holding that the notice has been sent at the address of the firm. It was addressed to all partners of the firm, it was received at the office of the firm/place from which the firm has been carrying on its business, then, the liberal principles laid down by the Supreme Court with regard to service of notice must apply to the facts of the present case. In paragraphs 17 to 19 of the trial court's judgment, this aspect of service has been noted.

8. Mr. Mishra would urge that the learned Judge committed an error in accepting the proof of service of notice, when the acknowledgement is signed by a lady. As far as this aspect is concerned, it is clear that the notice was addressed to the partners and at the firm address. The same was accepted at the firm address. In the present facts and circumstances, merely because an adult female member has received the packet would not vitiate the service. The suggestion made that the firm address is not that of accused no.2 has been considered in paragraph-12 of the order. Accused no.2 is not disputing the correctness of the address of his residence as well as particulars found in the correspondence with the firm. The complainant and accused no.2 are residing in the same building. The letter heads of the firm which have been produced shows the same address at which the notice under Section 138(B) has been served.

9. The present applicant was disputing his address as well. While it may be true that he has changed the address, even that aspect has been noted in paragraph-19 of the trial court's order and it has proceeded on the basis that service of notice on accused no.3 at the address of the firm, which was available from the record and which continues to be so, then, the service cannot be held to be vitiated or illegal. It is held by the Supreme Court that as far as service of the notice under Section 138(B) is concerned, liberal principles will have to be applied. As long as there is material available to show that the packet is dispatched and served at the same address, then, without anything more it cannot be held that the statutory notice is not served. (See AIR 2009 S.C. 386, M/s. Indo Automobiles Vs. M/s. Jai Durga Enterprises & Ors. Para 8).

10. In the present case, all the aspects that are highlighted by Mr. Mishra are in the realm of appreciation and appraisal of the evidence. In revisional jurisdiction, it will not be permissible to undertake that exercise. This is not a court of appeal. If the conclusion arrived at by the courts below is based on evidence on record and documents produced, then, merely because another view is possible, this court cannot interfere in revisional jurisdiction. I have observed already that there is no miscarriage of justice. There is not even a proof of irregularity of service. In such circumstances and when there are concurrent findings of facts with regard to essential ingredients of the offence, then, it is not a fit case for interference. The Revision Application is dismissed.

11. The reliance placed upon the judgment of the Supreme Court on the order passed by the Supreme Court in Criminal Appeal No.711 of 2009 Arising out of S.L.P. (Cri) No.7828 of 2007, M.D. Thomas Vs. P.S. Jaleel and anr. dated 13/04/2009 (since reported in 2009 ALL SCR 2768) is mis-placed. Therein, the conviction was set aside because the party before the Supreme Court was an individual. The notice of demand was served upon the wife and not the appellant. It is in such circumstances, that the Supreme Court reached the conclusion that the requirement of giving notice in terms of Clause (B) of Section 138 is not satisfied. Such is not the situation before me. The order is clearly distinguishable.

12. These are the only contentions raised before me. In the result, Revision Application is dismissed.

Revision application dismissed.