THE HON'BLE SRI JUSTICE K.SURESH REDDY
CRIMINAL REVISION CASE No.1168 of 2006
ORDER:
This Criminal Revision Case is filed against the Judgment, dated 7.7.2006 passed in Criminal Appeal No.73 of 2004 on the file of the Court of the learned VII Additional District & Sessions Judge (Fast Track Court) Krishna at Vijayawada, by confirming the Judgment of conviction, dated 9.4.2004 passed in C.C.No.706 of 1999 on the file of the learned II Metropolitan Magistrate, Vijayawada.
2. Brief facts of the case are that the 2nd respondent filed a private complaint against the revision petitioner herein under Section 138 of Negotiable Instrument Act, 1881( for short 'NI Act'). The 2nd respondent is a Public Limited Company with its Head Office at New Delhi and it is having branch at Vijayawada. The company is manufacturing tyres, tubes, flaps etc., and marketing the same through branch offices at different places. The revision petitioner is running business in the name and style of M/s.Sri Lalitha tyres at Undavalli Centre, Guntur District, having branch office at Autonagar, Vijayawada. During the course of business, the petitioner purchased products of the 2nd respondent from the branch office at Vijayawada for the purpose of sale. The 2nd respondent supplied the said goods under various invoices on the orders placed by the revision petitioner. The petitioner became due an amount of Rs.5,02,593/- under various 2 invoices. In discharge of the said debt, the petitioner has issued ten cheques in favour of the 2nd respondent. When the 2nd respondent presented the said cheques in the bank for encashment, they were returned with an endorsement "Insufficient Funds" by a memo dated 21.7.1999 and the same was received by the 2nd respondent on 22.7.1999. The 2nd respondent got issued a legal notice, dated 28.7.1999. The said notice was returned with an endorsement "Left without instructions". Thereafter, the 2nd respondent filed three private complaints against the petitioner for the offence under Section 138 of NI Act before the II Metropolitan Magistrate, Vijayawada, and they were numbered as C.C.No.705 of 1999, C.C.No.706 of 1999 and C.C.No.707 of 1999.
3. In support of the complainant's case, P.Ws.1 & 2 were examined and marked Ex.P1 to P26. No oral and documentary evidence was adduced on behalf of the petitioner.
4. On appreciation of the oral and documentary evidence, the learned Metropolitan Magistrate convicted the petitioner and sentenced her to undergo Simple Imprisonment for a period of six (06) months and to pay a fine of Rs.3,000/- in default, to suffer simple imprisonment for a period of one (01) month, for the offence under section 138 NI Act. The trial Court also gave a direction that the sentence passed in this case and sentences passed in C.C.Nos.705 of 1999 and C.C.No.707 of 1999 shall run concurrently. 3
5. Aggrieved by the said conviction and sentence, the petitioner filed Crl.A.No.73 of 2004 on the file of the Court of VII Additional District & Sessions Judge (Fast Track Court) Krishna at Vijayawada and after appreciation of entire evidence on record, the learned Sessions Judge confirmed the conviction and sentence passed against the petitioner.
6. Aggrieved by the same, the revision petitioner filed the present revision case before this Court.
7. Heard learned counsel for the revision petitioner, learned Additional Public Prosecutor for the 1st respondent / State and learned counsel for the 2nd respondent.
8. Learned counsel for the petitioner submits that the person, who filed complaint was not competent person and GPA Holder cannot file a complaint on behalf of the company. But the said contention cannot be considered in view of the Judgment of the Apex Court in M/s.M.M.T.C. Limited V. M/s.Medchi Chemicals & Pharma (P) Limited1. As per the Judgment of the Hon'ble Apex Court, the GPA Holder can file a complaint for the offence under Section 138 of NI Act.
9. Next contention raised by the learned counsel for the revision petitioner is that as per the provisions of 138 NI Act, the complainant has to serve notice on the accused. In the present case, admittedly notice sent by the 2nd respondent was returned unserved, as such, he is entitled for acquittal. 1 AIR 2002 SC 182 4 The said contention also cannot be considered as the 2nd respondent issued notice to the correct address of the revision petitioner. The same is supported by Ex.P24 letter given by the revision petitioner to the 2nd respondent firm to allot dealer ship, which contains the same address. The 2nd respondent sent notice to the very same address. Hence, the contention raised by the learned counsel for the petitioner, with regard to notice, has no legs to stand.
10. Coming to another contention with regard to filing of Insolvency petition, learned counsel for the petitioner stated that the revision petitioner filed Insolvency petition, which is marked as Ex.P25. In that Insolvency petition, the 2nd respondent was also shown as one of the respondents. The said Insolvency petition is only with regard to the Civil Liability. But the present case on hand related to criminal prosecution. Therefore, mere filing of Insolvency petition does not exonerate the revision petitioner from criminal prosecution. As such, the said contention is also rejected.
11. Learned counsel for the petitioner further submits that one K.Rambabu filed private complaint on behalf of the 2nd respondent and he was not examined during the course of trial. The said contention also cannot be considered as any of the persons authorized by the Company can be examined as a witness during the course of trial. Finally, learned counsel for the petitioner submits that as the petitioner is a lady and 5 requested to take a lenient view with regard to sentence of imprisonment.
12. On the other hand, the learned Additional Public Prosecutor opposed the same stating that both the Courts on appreciation of the entire evidence, concurrently found that the revision petitioner committed the offence under section 138 of NI Act and the prosecution conclusively established the guilt of the petitioner beyond reasonable doubt and he sought for dismissal of the revision case.
13. This Court has gone through the entire evidence placed by the prosecution on record. It is found that both the Courts below have rightly came to a conclusion that the revision petitioner intentionally avoided to receive notice, though the notice sent to the correct address and mere filing of Insolvency petition by the revision petitioner does not exonerate her from criminal prosecution. Further, with regard to the examination of Rambabu, it is not compulsory to examine, who filed private complaint before the Court. Any person authorized by the Company can be examined as a witness before the Court. Therefore, considering all these aspects as discussed above, both the Courts rightly discussed the entire evidence on record and convicted the revision petitioner.
14. However, considering the submissions made by the learned counsel for the petitioner, a lenient view may be 6 taken and the sentence of imprisonment can be reduced as the revision petitioner is a lady.
15. In that view of the matter, the present Criminal Revision Case is allowed in part by reducing the sentence of imprisonment from six (6 ) months to three (3) months for the offence under Section 138 NI Act, while maintaining the fine amount imposed by the Courts below. Accordingly, the judgment dated 7.7.2006 passed in Criminal Appeal No.73 of 2004 on the file of the Court of the learned VII Additional District & Sessions Judge (Fast Tract Court) Krishna at Vijayawada, is hereby modified to that extent.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
______________________ K.SURESH REDDY,J 7th January, 2021.
RPD 7 HON'BLE SRI JUSTICE K. SURESH REDDY Criminal Revision Case.No.1168 of 2006 Dated: 07.01.2021 rpd