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2005 Supreme(AP) 679
Andhra Pradesh High Court
Judges : P.SWAROOP REDDY
Polisetty Seetharam anjaneyulu Sons, Guntur - Appellant
Versus
Public Prosecutor, High Court of A.P. - Respondent
Decided On : 07-29-05
Headnote:
Negotiable Instruments Act – Section 138, 13 (b) (c) – Partnership Act, 1932 – Section 62 – Code of Criminal Procedure – Section 313 – General Clauses act, 1897 – Section 27 – Prosecution – Imprisonment – Compensation – Liability – This revision case is filed against judgment of learned i Additional Sessions Judge in crl. A. in which learned judge confirmed conviction of present petitioners, imposed by learned iii Additional Judicial Magistrate of First class in C. C. for an offence under Section 138 of negotiable Instruments Act – Learned magistrate convicted A-1 company and A-2 and A-3, its partners, for offence under section 138 of Negotiable Instruments act and sentenced A-2 and A-3 to simple imprisonment for six months each and directed to pay compensation each, in default to undergo simple imprisonment for three months each – Learned Magistrate also sentenced A-1 to pay fine in default to undergo simple imprisonment for three months – Held, accused never stated that notice was sent to a wrong address they have not got managed to return notice or that they were out of station during that period – It is also not suggested to PW-1 that notices were sent to wrong address or that they were out of station during that period – Thus, court feel that complainant has sufficiently proved that accused got managed to return notice and that is sufficient compliance of Section 135 (b) (c) of Negotiable instruments Act – Court feel that equilibrium shall be always in favour of complainant – Requirements under Section 138 (b) (c) of Negotiable Instruments Act are in nature of only formality of making demand and interpretation with regard to service shall be always in favour of complainant, as observed by Honble supreme Court that a trickster and dishonest evader would always try to take advantage of situation of alleged non-service that he knows by successfully evading, he would get rid of liability and as further observed by Honble Supreme Court Court should not adopt an interpretation, which helps a dishonest evader and clips an honest payee, as that would defeat very legislative measure – Revision case is Dismissed
( 2 ) THE case arose out of a private complaint filed by the complainant, the present second respondent, under Section 138 of the Negotiable Instruments Act. The allegation is that the complainant is a partner of A-1 firm which does tobacco business. A-1 to A-3 had regular business dealings with the complainant since 8 - 9 years. The complainant used to supply tobacco to the accused; the accused used to pay the value of the tobacco supplied to them by way of cheque. A2 and A-3 used to sign the cheques and invoices. On 18-9-2000 the complainant supplied tobacco weighing 81,144 Kgs at the rate of Rs. 18. 50 per Kg, worth Rs. 15,01,164-00 at Throvagunta godown of the accused. At the time of receipt of the stock, A-2, one of the partners of the company signed the invoice dated 18-9-2000 with a promise to pay the amount within one month, A-3, with the knowledge of A-2, got issued a cheque on 13-10-2000 for Rs. 15,00,000-00, drawn on Vysya Bank, Guntur towards discharge of legally enforceable debt due under the invoice dated 18-9-2000, being the value of 81,144 Kgs of tobacco supplied, when the complainant presented the cheque for realization, on four occasions, it was dishonoured for want of funds. The complainant got issued statutory lawyer s notice on 7-2-2001 to the accused calling upon them to pay the due to the complainant. The accused managed to get the notice returned.
( 3 ) THE accused denied the offence.
( 4 ) ON behalf of the prosecution pws. 1 to 3 were examined and Exs. P-1 to p-57 were marked.
( 5 ) THE accused in their statement under Section 313 Cr. P. C. simply denied the incriminating material appearing against them in the complaint and evidence and got marked Exs. D-1 to D-4, certain invoices signed by PW-1.
( 6 ) THE learned Magistrate formulated the following six questions for consideration: (i) Whether PW-1 is having locus standi to institute the complaint on behalf of the complainant firm or not? (ii) Whether the complainant could able to establish the cheque in question ex. P-47 said to have been issued by a-3 for discharge of legally enforceable debt or liability? (iii) Whether the complainant could able to establish the transaction in between the complainant firm and accused? (iv) Whether the partnership deed dated 10-12-1997 (Ex. P-31) is valid or it is fabricated as alleged by the accused or the mistake crept in Ex. P-31 regarding the dates are any affect to the case of the complainant? (v) Whether the complaint is barred by virtue of under Section 62 of the partnership Act, 1932? (vi) Whether the statutory notice (Ex. P-50) is strictly prescribed under Section 138 (b) and (c) of the Negotiable Instruments Act? and held that the case against the accused is proved. The learned Sessions Judge confirmed the same. Now, the contention of the learned counsel for the petitioners is that: pw-1 has no locus standi to file the complaint; there is no material to show that the cheque was issued towards legally enforceable liability; that the complaint firm was not properly registered as such the complaint is not maintainable? and the statutory notice as contemplated
