T. Azeerur Rahman And Co. vs Super Supplies
2007 Latest Caselaw 1297 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The present revision petition has been preferred against the order dated 10.7.2000 passed by the Learned Additional Sessions Judge(ASJ). The ASJ allowed the respondent complainant's revision against acquittal of the respondent.

2. The brief facts necessary to decide this present petition are as follows. The Petitioners are manufacturer and exporters of finished leather. It is a partnership firm having its place of business at Chennai. The Respondent firm (hereafter referred to as the complainant) filed a complaint alleging commission of offences under Section 138 of the Negotiable Instruments Act. The complainant allegedly supplied goat and sheep skin to the petitioner between November, 1989 and May 1990 against various bills which were allegedly received. The total amount outstanding against and payable by the Petitioner exceeds Rs. 90, 00,000/- (Rs. Ninety lakhs).

3. It was alleged by the complainant respondent, that towards the outstanding liability a Cheque No.104718 on 30.12.90 was issued to it for Rs. Ten Lakhs drawn on Allahabad Bank Mount Road. The cheque was allegedly issued by the Petitioner firm's sister concern called the M/s Nadira Leather Company, Madras. The said cheque was produced before the bank but was returned dishonoured due to insufficient funds on 3.1.1991. The complainant issued a legal notice to the Petitioner firm on 12.1.1991 but the latter did not comply with the notice. The petitioner moved an application under Section 245 stating that the evidence on record established that it was not the drawer of the cheque; in the absence of the drawer, or legal notice in accordance with law, it could not be made liable.

4. The trial court acquitted the Petitioner by his order dated 6.2.1996. The trial court was of the opinion that there was non-compliance with the mandatory provision of Section 138 of the Act. The court also found that the petitioner accused had not issued the cheque. In the absence of the drawer of the cheque, Nadira Leather Co, the petitioner could not be held guilty. The extracts of the order are as follows;

the mandatory provisions as contemplated under Section 138(b) & (c) of the Act are not complied with by the Complainant. The Complainant has not issued any notice to M/s Nadira Leather Co. nor made the said firm an accused, so no offence is made out against M/s T. Azeerur rehman which is not the drawer of the cheque. Since m/s Nadira Leather Co. is not an accused the partner of M/s Nadia Leather Co. are not liable. I am of the opinion that no offence is made out against M/s Azeerur Rehman & Co. and its partners

5. Aggrieved by this order the Complainants preferred a Revision Petition, under Section 397 Cr. PC. before the ASJ who set aside the order passed by the trial court. The ASJ appreciated new evidence and reversed the petitioner's acquittal.

6. The records show that the respondent complainant was served in these proceedings. It was represented on various previous occasions. Its counsel sought time to file a reply. This petition was shown in the list for final hearing. When the matter was taken up for hearing, there was none present for the respondent. The petition was adjourned twice to enable them to appear and make submissions. None, however appeared to contested the petition.

7. Mr. P.R. Agarwal, learned Counsel urged that the Complainant could not have preferred a Criminal Revision against the order of the trial court as no revision lay against an order of discharge in a complaint case. The Learned Counsel contended that when the accused is discharged by the magistrate, then the order has to be treated as an acquittal under Section 255; in that case, an appeal lies from that order not revision. The order of discharge in a complaint case has the effect of acquittal. The learned Counsel further contends that the order of the ASJ in admitting the revision and setting aside the lower court's order is not in accordance with law.

8. It was contended that the Sessions court cannot entertain a revision by a complainant against an order of acquittal when a right of appeal is available to him under Section 378(4) of the Cr. PC. When the complainant elected not to exercise that choice, the ASJ should not have exercised revisional jurisdiction, and reversed the order of discharge.

9. Learned Counsel relied upon the judgments reported as Raja Ram v. Principal Sudarshan Singh MKHS School 1981 Cr. LJ 1469; Bal Ram Suraj v. Dev Raj Dhiman 1987 (1) RCR 616. Reliance was also placed on the judgment of this Court in Kalpana Tyagi v. Sneh Lata Sharma 2003 (1) CCC (HC) 331, which was a case pertaining to order under Section 256; the court held that the order amounted to acquittal, and an appeal should have been preferred, instead of revision. He also cited Krishnamoorthy v. Elumalai and Ors. reported as 1982 L.W.(Crl).89. This too, was for the proposition that if a complaint is dismissed post -summoning of the accused, the order may be challenged by way of an appeal.

10. Learned Counsel submitted that the order of the magistrate was really in exercise of power under Section 255 of the Code, because the trial court felt that taking the evidence and materials as a whole, no material to proceed further had been made out. The basis of the trial court's order was that the drawer, M/s Nadira, had not been imp leaded as accused. In the absence of any notice, mandated by Section 138 of the Act, and the drawer made an accused in the complaint, the proceeding against the petitioner was not maintainable.

11. The main reason which persuaded the trial court to hold that the proceedings were not maintainable, was that undisputedly, the drawer of the cheques, M/s Nadira was neither issued with notice under Section 138(b) nor imp leaded as accused. The ASJ, however, concluded that though the drawer was not a party, by operation of Section 141, the Director /partner of Nadira, who was an accused, was liable. He held that Nadira Leather Company was a branch of the petitioner firm, and the latter fell within the ambit of Seciton 141. Reliance was placed on Anil Hada v. Indian Acrylic Ltd. . It was held, in the impugned order, that the partners of the the present petitioner firm, accused in the proceeding, agreed to start a unit or branch, in Thuthipet. On the basis of two documents, it was concluded that M/s Nadira was a branch of the petitioner.

12. In Raja Ram's case, the Punjab and Haryana High Court held as follows:

The Code envisages a few kinds of trial. Comparison of trials in a warrant case and a summons case would be useful to spell out the spirit underlying Section 254 of the Code. It would be noticed that in trial of a warrant case Section 244 of the Code warrants that the prosecution must produce all evidence in support of it. Under Section 245 of the Code the Magistrate is required to consider it and if he finds that no case has been made out against the accused, which, if unrebutted, would warrant his conviction, the Magistrate can discharge him, without hearing the accused or taking his evidence. In a trial of summons case the Magistrate under Section 254 is required to hear the prosecution and take all such evidence as may be produced in support of it, and also to hear the accused and take all such evidence as he produces in his defense. It is then that Section 255 of the Code authorises the Magistrate, upon taking the evidence referred to in Section 254, to pronounce the accused guilty and sentence him or to acquit him. In either situation the prosecution would first have to prove by its own evidence that the accusation against the accused, if unrebutted by him, stands substantiated beyond all reasonable doubt. But if the prosecution itself is unreliable and cannot warrant by itself conviction of the accused, the accused may not open his mouth and may not produce his evidence altogether. The mere ritual in the instant case of asking the accused formally, whether he wanted to be heard and produce his defense evidence, need not have been observed as it would not have served any useful purpose. The prosecution case taken as a whole was not found worthy of even formally being put in an accusation in the form of a charge to the accused. Thus the conclusion is inescapable that that order of discharge passed has to be read as an order of acquittal deemingly to have been passed under Section 255 of the Code. And on that finding no revision was competent before the Additional Sessions, Judge, Ferozepur and thus his order dated 30th August, 1980 is illegal and has to be quashed. As a sequel thereto the charge against the accused-petitioner too, is groundless, and illegal. That too has to be quashed.

13. The decisions cited on behalf of the petitioner suggest that if a Magistrate exercises power under Section 255 on the basis of materials, and the complaint, concluding that the offences cannot be made out, the order results in acquittal. In such event only an appeal would be maintainable, not a revision. In this view of the matter, the course adopted by the ASJ in his impugned order is indefensible. Furthermore, even if it were assumed that the ASJ could have entertained a revision, yet, the provision in Section 401(3) of the Cr.PC enjoined him to refrain from converting an acquittal into an order of conviction. That provision is applicable to revisions by the Sessions Court, by virtue of Section 399(2).

14. In view of the above findings, the petition has to succeed. The above observations do not preclude the complainant respondent from proceeding to challenge the order of the magistrate, in accordance with the procedure established by law. The petition is therefore allowed without any order as to costs.