M/S Srilalitha Tyres, A ... vs The State Of Andhra Pradesh,
2021 Latest Caselaw 47 AP

      THE HON'BLE SRI JUSTICE K.SURESH REDDY

       CRIMINAL REVISION CASE No.1167 of 2006

ORDER:

This Criminal Revision Case is filed against the

Judgment, dated 7.7.2006 passed in Criminal Appeal No.74

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.707 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

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 wasreceived 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.706 of 1999 shall run concurrently.

5. Aggrieved by the said conviction and sentence, the

petitioner filed Crl.A.No.74 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.

AIR 2002 SC 182

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

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

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.74 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

HON'BLE SRI JUSTICE K. SURESH REDDY

Criminal Revision Case.No.1167 of 2006

Dated: 07.01.2021

rpd