Criminal Revision Application No. 435 of 2011. Case: Rekha Mahindra Shah Vs Gautam Umed Parmar and Anr. High Court of Bombay (India)
| Case Number | Criminal Revision Application No. 435 of 2011 |
| Counsel | For Applicant: Mrs. Prabha Badadare, Adv. and For Respondents: Amit Borkar, A. S. Shitole, A.P.P. |
| Judges | S. C. Dharmadhikari, J. |
| Issue | Negotiable Instruments Act (26 of 1881) - Section 138; General Clauses Act (10 of 1897) - Section 27; Bombay General Clauses Act (1 of 1904) - Section 28 |
| Citation | 2013 CriLJ 2415 |
| Judgement Date | April 03, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
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The applicant/accused has approached this Court in revisional jurisdiction challenging the judgment and order dated 5th September, 2011 delivered by the Additional Sessions Judge, Kolhapur in Criminal Appeal No. 19 of 2008. By this judgment and order, the learned Additional Sessions Judge has confirmed the judgment and order dated 12th December, 2007 of the learned Judicial Magistrate First Class, 10th Court, Kolhapur in Summary Criminal Case No. 2252 of 2005. The learned Magistrate had convicted and sentenced the applicant/original Accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (for short "the N.I. Act").
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It is common ground that the original complainant/respondent No. 1 before me carries on business in the name and style M/s. Parmar Steel at Kolhapur. It is alleged by the respondent No. 1/original complainant that the applicant/original accused approached him in 2004-05 and purchased M.A. Structure goods on credit basis. Towards purchase of these materials, the applicant/original accused issued three cheques drawn on the Karnataka Bank Limited, Shahupuri Branch at Kolhapur dated 12th April, 2005 of total amount of Rs. 5,00,000/-. These cheques were presented by the respondent No. 1/original complainant through his Bank M/s. UTI Bank Limited, Kolhapur and the Bank forwarded the memo of dishonour of each cheque by the applicant's Bank containing the remark "exceeds arrangement". The respondent No. 1/original complainant, therefore, issued a notice dated 31st May, 2005 by Registered Post Acknowledgment Due demanding the sum under these three cheques. This notice was received by the applicant/original accused on 1st June, 2005. The applicant/original accused did not make payment, as demanded, within the time specified, and that is how the complaint alleging offence punishable under Section 138 of the N.I. Act came to be filed.
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Upon the complaint being filed, a summons was issued and the charges were framed. The defence of the applicant/original accused was of denial. That is how the case was tried and the evidence was recorded. Even the documents were exhibited. The statement of the applicant/original accused under Section 313 of the Code of Criminal Procedure, 1973, was recorded.
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On appraisal and appreciation of the oral and documentary evidence, the Trial Court convicted the applicant/original accused of the offence punishable under Section 138 of the N.I. Act and sentenced her to undergo simple imprisonment for one month. The learned Judge also granted compensation of Rs. 6,00,000/- to be payable within one month from the date of the judgment and order, failing which the applicant/original accused was to undergo simple imprisonment for three months.
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It is this judgment of the Trial Court, which has been confirmed by the lower Appellate Court, leading to the filing of this Criminal Revision Application.
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Mrs. Badadare, learned Advocate appearing on behalf of the applicant/original accused, has raised only one contention to challenge the conviction and sentence of the applicant/original accused. She submits that before the Trial Court and, equally, before the lower Appellate Court, it was argued that the applicant/original accused had denied receiving notice of demand (Exhibit 29). She submitted that this was her stand in the statement recorded under Section 313 of the Code of Criminal Procedure, 1973. The acknowledgment, that was allegedly produced, of receipt of the said notice was not signed by the applicant/original accused, but it bears signature of her husband. In such circumstances and when the notice of demand itself was not received by the applicant/original accused, she has not committed any offence under Section 138 of the N.I. Act. That notice of demand and refusal to comply therewith is an offence under this provision and, therefore, in the absence of any acknowledgment of receipt of the notice of demand, the offence has not been committed at all. Therefore, her conviction and sentence is completely vitiated.
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Mrs. Badadare, in support of her above argument that notice of demand should be served on the person who has issued the cheque, relies upon the judgment of the Hon'ble Supreme Court in the case of M. D. Thomas v. P. S. Jaleel and Anr., reported in (2009) 14 SCC 398: (AIR 2011 SC (Cri) 2089).
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On the other hand, Mr. Borkar, learned counsel appearing on behalf of the respondent No. 1/original complainant, submits that the argument canvassed before this Court is an afterthought. This argument was canvassed before the Courts below and it was rejected by holding that the notice of demand was issued. It was addressed to the applicant/original accused. It was delivered at the address whereat the applicant/original accused resides and carries on her business. It has been received at the said address. Merely because the acknowledgment card is signed by her husband does not mean that the applicant/original accused was not served with or did not receive the demand notice. If the applicant/original accused has received the demand notice and she has failed to comply therewith, then, she cannot complain that the law has been violated, or, that the conviction and sentence is illegal. If such defences are allowed, then, on technical and frivolous grounds, the conviction and sentence can be interfered with. In revisional jurisdiction, unless this Court is satisfied that there is failure of justice, it should not interfere. Therefore, this Criminal Revision Application be dismissed.
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Mr. Borkar has relied upon the judgment of the Hon'ble Supreme Court in the case of C. C. Alavi Haji v. Palapetty Muhammed and Anr., reported in 2007 (6) SCC 555: (AIR 2007 SC (Supp) 1705).
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While dealing with the above contentions, firstly, the factual background needs to be cleared. The demand notice was issued. The demand notice was addressed to the applicant/original accused. The...
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