Complaint can not be filed by authorized agent by proprietorship firm without GPA or permission of Court.

Calcutta High Court
Prasanta Kumar Basu vs Narendra Kumar Anchalia And Anr. on 22 November, 2006
Equivalent citations: 2007 CriLJ 1026
Author: S K Gupta
Bench: S K Gupta

JUDGMENT

Sadhan Kumar Gupta, J.

1. This criminal appeal has been preferred against the judgment passed by the learned City Sessions Judge, 8th Bench, Calcutta in Criminal Appeal No. 21 of 1999 whereby he acquitted the accused for the offence under Section 138 of the N.I. Act.

2. The case of the appellant is that he is the Manager of the firm M/s. L. M. Enterprises and being duly empowered and authorised by the proprietor of the said firm, he filed a petition of complaint under Section 138 of the N.I. Act against the accused/respondent in the Court of the Chief Metropolitan Magistrate, Calcutta. Said case was registered as Case No. C/1815/95.

3. It was alleged in the said complaint, by the complainant that the accused/respondent as the proprietor of M/s. Sree Ramdevji Art International, in discharge of his existing liabilities issued two account payee cheques of Rs. 5,00,000/- each drawn on Indian Overseas Bank, Chowranghee Branch in favour of the appellant-company. But those cheques were dishonoured and returned back to the appellant-company. A notice was sent to the accused demanding payment of the amount as mentioned in those two cheques within 15 days from the receipt of the said notice. However, as the accused failed to make the payment, so the petition of complaint was filed against the accused by the complainant.

4. During trial, charge under Section 138 of the N.I. Act was framed against the accused who pleaded not guilty and claimed to be tried. The accused contested the case challenging the service of the notice as well as the maintainability of the case. The complainant examined three witnesses while the defence also examined three witnesses including himself.

5. Learned Metropolitan Magistrate 16th Court, Calcutta, upon consideration of the evidence on record, was pleased to hold the accused guilty for the offence punishable under Section 138 of the N.I. Act. But as he was of the opinion that he could not impose adequate sentence, as provided in the statute, so he referred the matter to the learned Chief Metropolitan Magistrate as per provisions of Section 328 of Cr. P.C.

6. Learned Chief Metropolitan Magistrate by his judgment dated 17-8-1999 held the accused guilty for the offence under Section 138 of the N.I. Act and sentenced him to pay fine of Rs. 10,00,000/- in default to suffer rigorous imprisonment for one year with the direction that 80% of the fine amount, if realised, would be paid to the complainant by way of compensation.

7. Against the said order of conviction, the accused preferred an appeal before the learned City Sessions Court and said Court by his judgment dated 31-1-2001 was pleased to set aside the order of conviction, as passed by the learned Chief Metropolitan Magistrate, Calcutta and acquitted the accused.

8. As the complainant/appellant is aggrieved by the said order of acquittal of the accused by the learned Sessions Judge, so this criminal appeal has been preferred by the complainant before this Court after obtaining special leave. It has been alleged in the appeal, as filed by the complainant, that the learned Sessions Judge was not at all justified in holding that the notice was not properly served upon the accused and the notice is also not legal and valid in the eye of law and that the petition or complaint was not entertainable as it was not filed by the proprietor himself. According to the appellant, the findings of the learned Sessions Judge are absolutely illegal and improper and those are perverse in nature causing failure of justice. So the appellant has prayed for setting aside the order of acquittal, as passed by the learned Sessions Judge.

9. Learned Advocate for the appellant argued that the learned Sessions Judge acquitted the accused/respondent mainly on three grounds viz. 1) the notice was not properly served upon the accused; 2) the notice is also not legal and valid and 3) since the complainant is a proprietorship firm and since the proprietor himself has not signed the petition or complaint and he has not come forward to the Court for giving deposition, so the petition or complaint, as filed by the alleged authorized person is not maintainable in the eye of law. According to the learned Advocate for the appellant notice was duly sent by registered post with A/D at the correct address of the place of the business of the accused and it was delivered at such place by the postman and as such notice should be deemed to have been served upon the accused. In this respect he has relied upon the decisions ,Madan and Co. v. Wazir Jaivir Chand and , K. Bhaskaran v. Sankaran Vaidhyan Balan.

10. Regarding the contention that notice was not legal and valid. Learned Advocate for the appellant argued that contents of the notice was perfectly legal and the learned Sessions Judge was not at all justified in holding that the notice is defective and is not sustainable in the eye of law. In support of his contention he has relied upon the decisions reported in 1998 C Cr LR (Cal) page 106, Ajay Kumar Churiwala v. Suman Sethi and Ors. 2000 C Cr LR SC page 257 : 2000 Cri LJ 1391,Suman Sethi v. Ajay K. Churiwala and Anr. According to the learned Advocate for the appellant the finding of the learned Sessions Judge in this respect should be set aside.

11. Regarding the observation of the learned Sessions Judge that as the proprietor of the firm has not signed the petition of complaint and as he did not come forward before the Court for giving deposition and for that reason the petition or complaint was not maintainable, learned Advocate for the appellant argued that this finding of the learned Sessions Judge is absolutely illegal and improper which resulted in the failure of justice. In this respect he has relied upon the decisions reported in 1993 C Cr. L. R. (Cal) page 225 Sk. Abdur Rahim v. Amal Kumar Banerjee; Associated Cement Co. Ltd. v.

Keshavanand; M.M.T.C. Ltd. and Anr. v. Medchl

Chemicals & Pharma (P) Ltd. and Anr. 2005 Cr LJ page 3572 Y. Vijaylakshmi alias Rambha v. Manickam Narayanam.

12. Regarding the argument as made by the learned Advocate for the respondent that there was defect in complying the provisions under Section 251, Cr.P.C. the learned Advocate for the appellant argued that it is merely an irregularity which is curable under Section 465, Cr. P.C. and for that he relied upon the decision, reported in AIR 1949 Pat page 323, Rajeshar Prasad Singh v. Province of Bihar and AIR 1956 Assam page 127, Abdul Kadir v. Gafur Sheikh and Ors.

13. As against this, learned Advocate for the respondent argued that the statutory notice was not properly served upon the accused and as such on this ground the proceeding under the N.I. Act was liable to be set aside. In this respect he has cited decisions reported in 2005 (2) Bankman page 88; 2004 (3) CHN page 165; 2005 (1) Bankman page 125; 2005 (2) Bankman page 317; 1993 CLJ page 2196. According to him onus to prove the service of notice is upon the complainant and since that onus has not been properly discharged in this case, so the proceedings under the N.I. Act cannot proceed.

14. He further argued that contents of the notice is also defective as it has been mentioned therein not only about the amount but also the interest that was claimed by the complainant. According to him, this is not permissible and as such the notice should be held defective.

15. Learned Advocate for the respondent further argued that the accused was not properly examined under Section 251, Cr. P.C. as the substance of allegation was not properly stated to him at the time of such examination, thereby vitiating the entire proceeding. In this respect he has relied upon the decision reported in 1962 (1) Cri LJ page 429; 2000 Cal Cr LJ page 460; 2001 Cal Cr LR page 32; 2003 C.Cr. L. R. page 267; 2004 CHN page 187 and 2004 (1) E Cr N (Cal) page 1385.

16. The learned Advocate for the respondent further argued that this is the admitted position that the entire amount in question has been fully realised by the complainant by way of filing civil suit and as such present proceeding should not be allowed to be continued. In this respect he has relied upon the decisions reported in 2002 (2) CHN page 407; 2004 (4) CHN page 291; 2006 Cr LR page 616; 2005 (1) ACJ page 299 (SC); 1998 Cr LJ 1690. By citing those decisions, the learned Advocate for the respondent/ accused argued that since the payment has already been made there cannot be any justification for proceeding further with the matter and as such he prayed for passing appropriate order in this respect.

17. The learned Advocate for the accused/respondent lastly argued that admittedly the complainant is a proprietary firm and the proprietary concern has got no entity in the eye of law and as such only the said proprietor can file the petition or complaint under Section 142(a) of the N.I. Act. According to him, authorised representative of the said proprietor cannot file the petition of complaint as because he is not the payee or the person concerned who subsequently came in charge of the cheques in question. As such, said representative cannot file the petition or complaint. He further argued that even if the petition or complaint can be filed by the authorised representative, then it must bear the signatvire of the proprietor whose examination under Section 200, Cr. P.C. is a must, Since all these, things have not been complied with, so the learned Advocate for the respondent argued that the petition or complaint is not maintainable and the learned Sessions Judge was perfectly justified in making observation to that effect and consequently acquitting the accused from the case. In this respect he has cited decisions reported in 2003 (2) DCR page 9; 2003 (2) DCR page 607; 2004 (2) Bankman page 380; 2005 (2) Bankman page 412; 2006 (1) Cr LJ page 314; 2006 (1) DCR page 229; 2005 (2) DCR page 439; 1999 Cal Cr LR (SC) page 160 : 1999 Cri LJ 2092; 1996 Cr LJ page 3099 (Guj) and 1999 (1) BC page 313.

18. I have considered the submissions of the learned Advocates for both the sides as well as perused the decisions as cited by them in support of their respective contention. First of all, it may be pointed out here that the present appeal has been preferred against the order of acquittal. Learned Advocate for the respondent argued that normally High Court should not interfere into the decision of acquittal, as passed by the Court below when it was based on the materials available in the record. According to him, as the learned Sessions Judge acquitted the accused after thoroughly discussing the materials on record, so it will not be proper on the part of this Court to interfere in the said order of the learned Sessions Judge. As against this, the learned Advocate for the appellant argued that the power of the High Court in an appeal against the acquittal are not different from its powers hearing an appeal against an order of conviction. According to him, High Court can always interfere into the order of acquittal, if it appears to the High Court that the said order of acquittal was not passed after proper appreciation of the evidence on record. In this respect he has cited decision Lakhan Kalu

Nikalji v. State of Maharashtra wherein the Hon’ble Supreme Court observed “The powers of the High Court in an appeal against the acquittal are not different from the powers of the same Court in hearing an appeal against a conviction. The High Court in dealing with such an appeal can go into all questions of fact and law and reach its own conclusions on evidence…” in the decision , Sitaram Durga Prasad v. State of Madhya Pradesh it has also been held that the High Court has full power to review at large the evidence, on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. So, it appears that while hearing an appeal, against an order of acquittal, this Court can always look into the materials, as were there before the Court below and to come to a conclusion as to whether the learned Court below was justified in passing the order of acquittal. Keeping this legal principle in mind, let us now consider the judgment, as passed by the learned Sessions Judge.

19. Learned Advocate for the appellant argued that the learned Sessions Judge was not at all justified in holding that the notice was not properly served upon the accused/ respondents. It appears that the learned Judge in his judgment observed that the complainant failed to prove that notice was properly served upon the accused/respondent. According to the learned Advocate for the respondent, onus lies on the complainant to prove that notice was served upon the accused/respondent particularly when the accused clearly denied such service. It appears that the complainant in order to discharge this onus adduced evidence. The P.W. 3 Prasanta Kumar Basu in his evidence claimed that the notice was duly received on behalf of the accused by one of his employee who was competent to receive the same. In addition to this, the learned Advocate for the appellant drew my attention to the evidence of D. W. 1 Narendra Kumar Anchalia the accused himself. In his evidence the accused admitted “My address given in A/D card i.e. exhibit 6 is correct”. At the same time he further admitted that he did not give any instruction to the postal authority that registered letter addressed to him should not be handed over to his employees. If we look into the evidence of D.W.2, the Assistant Superintendent of Post Office, then it will appear that he admitted that a registered letter could be delivered to the authorized representative of the addressee either on verbal or by written instruction. The evidence of the D. W. 3 in this respect is most important. He is the peon who actually delivered the said letter. In his evidence-in-chief this witness claimed that the letter was handed over to Mr. Subramouium popularly Known as Swamiji of the film industry. In cross examination this witness admitted “I know Mr. Subramonium alias Swami who is working in this office of accused Narendra Kumar Anchalia at the relevant time. On several occasions I delivered registered letters of Mr. Narendra Kumar Anchalia to his employee Mr. Subramonium and there was no complaint made before the Post Office for such delivery of registered letter of Mr. Narendra Kumar Anchalia to Mr. Subramonium”.

20. So it is clear from the evidence of this D. W. 3 that Mr. Subramonium was the authorized person of the accused to receive registered letter on his behalf. As such, I think that there is nothing wrong on the part of the postal peon to deliver the said letter of the accused to Mr. Subramonium. It is also palpably clear that the address as mentioned in the body of the said registered letter is correct. As such, it appears that since the address of the accused was correctly mentioned in the envelope and since it was duly received by his authorised representative, so we can safely presume that the notice was duly received by the accused. Under such circumstance, I am unable to agree with the finding of the learned Trial Judge that notice was not properly served upon the accused/respondent.

21. Learned Advocate for the respondent further pointed out that the notice, as given under the N.I. Act by the complainant to the accused is bad in the eye of law and on the basis of the said notice the proceeding in question cannot continue. It appears that the learned Judge was also of the opinion that the notice was defective and as such on the basis of the said notice, the proceeding cannot continue. Learned Judge was of the view that since it was mentioned in the said notice that the complainant would claim interest from the accused in respect of the unpaid amount, so the notice should be held to be defective. In this respect, the learned Judge placed reliance upon a decision. But in the decision reported in 1998 C. Cr. L. R. (Cal) page 106, Ajoy Churiwala v. Suman Sethi and Ors., the learned single Judge of this Court was of the opinion that even if the notice includes claim for incidental charges besides the amount of bounced cheque and if the cheque amount is specifically shown then the notice cannot be said to be bad. The learned single Judge considered the decision of Gopa Devi’s case as reported in 1956 C. Cr L. R. (Cal) page 40 : 1995 Cri LJ 3412 while coining to such a conclusion. It appears that the order of the learned single Judge of this Court was challenged before the Hon’ble Supreme Court as reported in 2000 C. Cr. L. R. (SC) page 257 : 2000 Cri LJ 1391, Suman Sethi v. Ajoy Kumar Churiwala and Anr. wherein the view, as taken by the learned single Judge of this Court, has been affirmed. As such, in view of such ratio, as decided by this Court as well as by the Hon’ble Supreme Court, it cannot be said that as in the notice, besides the cheque amount, the complainant mentioned about the interest that would be charged against the accused, same cannot be held to be bad in the eye of law. In fact, at the time of argument, learned Advocate for the respondent frankly and fairly conceded this legal position. So, I have got no hesitation to hold that the learned Judge was not at all justified in holding that the notice was bad in the eye of law and as such the proceeding cannot proceed.

22. Learned Advocate for the accused/ respondent further argued that in this case the plea of the accused under Section 251, Cr.P.C. was not properly recorded and as such the proceeding is liable to be set aside on that ground also. In support of his contention he drew my attention that the detail of the substance of accusation was not read over and explained to the accused by the Court. As such, according to him, in view of such defect, the proceeding is liable to be set aside and the accused is entitled to be acquitted on that ground too. In order to substantiate his claim in this respect the learned Advocate for the appellant cited decisions reported in 1962 (1) Cri LJ page 429, State of Kerala v. Raman Nair 2000 C. Cr. L. R. (Cal) page 460, Dilip Kumar Das and Anr. v. The State of West Bengal, 2001 C. Cr. L. R. (Cal) page 32, Natendra Nath Giri v. State of West Bengal, 2003 C. Cr. L. R. (Cal) page 267, Ashok Kapri v. Iswar Chandra Jana and Anr., 2004 (1) E. Cr. N. page 1385,Om Prakash Modi v. State. It appears from all those decisions that the learned single Judges of different High Courts were of the view that unless substance of accusation, disclosing the vital materials against the accused, are explained to him, as provided under Section 251, Cr. P.C. then it must be held that the accused was prejudiced in properly defending his case. Learned Advocate for the respondent/accused argued that in this case there is no doubt that the material allegations were not read over and explained to the accused under Section 251, Cr. P.C. The provisions of Section 251, Cr. P.C. was only complied with mechanically and as such, he submits that on this ground also the accused is entitled to be acquitted as he has been prejudiced in properly defending his case.

22-A. As against this learned Advocate for the appellant/complainant relied upon the decisions reported in AIR 1949 Pat page 323, Rajeswar Prasad Singh v. Province of Bihar, AIR 1956 Assam page 127, Abdul Kadir v. Gafur Sheikh and Ors. It appears that both these decisions were delivered by the Division Bench. So far as the decisions relied upon by the learned Advocate for the accused/respondent it appears that all those decisions were delivered by the learned single Judges. As such, there cannot be any doubt that we should place more reliance upon the ratio as decided by the Division Bench. From those decisions it is clear that simply because the substance of accusation was not properly read over and explained to the accused that cannot be a ground for his acquittal unless it is shown that it caused prejudice to the accused in defending the case. The Division Benches are of the clear view that this defect in the examination of the accused under Section 251, Cr. P.C. is a mere irregularity and can be cured. The main thing that is to be considered, is, whether there was any prejudice caused to the accused for this defect in complying with the provisions of Section 251, Cr. P.C. So far as the present case is concerned, it appears that the accused contested the case and cross-examined the complainant’s witnesses in detail. That apart the accused also adduced evidence of himself as well as the evidence of other witnesses on his behalf. As such, under no stretch of imagination, it can be said that the accused was prejudiced in defending his case property as the substance of accusation was not read over and explained to him properly. Considering the legal aspect, as discussed above, I am of opinion that the accused cannot be acquitted on this ground, as claimed by the learned Advocate for the respondent. So this contention of the learned Advocate for the respondent is rejected.

23. Learned Advocate for the accused/ respondent argued that the amount in question for which the cheques were bounced, have already been received by the complainant along with interest and there is nothing outstanding. This position was also admitted by the learned Advocate for the appellant/complainant and he submitted that the amount in question has already been realised by the complainant, by filing a Civil Suit, along with interest. So the fact remains that the amount in question has already been received by the complainant and there is nothing outstanding. As such, learned Advocate for the accused/respondent submitted that since the amount has already been paid, as full and final settlement, then this fact should be taken into consideration by the Court and there was no necessity for the complainant to proceed with the proceeding under Section 138 of the N.I. Act against the accused/respondent. According to him, under such circumstances, it will be fit and proper for the Court to drop the proceeding against the accused and to acquit him from the charge. In this respect, the learned Advocate for the accused/respondent cited decisions reported in 2002 (2) CHN page 407, Jasoda Glass & Silicate and Ors. v. Regional Provident Fund Commissioner and Ors., 2004 (4) CHN page 291, Howrah Motor Company Limited and Ors. v. Samir Kumar Das, (2006) 1 C. Cr. L. R. (Cal) 616, Air Transport Corporation and Ors. v. The State of West Bengal and Anr. 2005 (1) ACJ page 299, Mohd. Shamim v. Smt. Nahid Begum and 1998 Cri LJ page 1690, Provident Fund Inspector, Guntur v. Chirala Co-operative Spinning Mills Ltd. and Ors. It appears that all those decisions except the decision reported in 2005 (1) ACJ page 299 (supra) are based in connection with violations of Provident Fund Act. There is gulf of difference in between the said Act and the provisions of N.I. Act. The decision reported in 2005 (1) ACJ 299 is in respect of a case under Section 498-A of the Indian Penal Code and the Hon’ble Supreme Court was of the opinion that when the husband and wife settled the matter amicably in between themselves so there was no justification for allowing the proceeding to continue and considering that aspect the Hon’ble Supreme Court was pleased to set aside criminal proceeding. But so far as the present case is concerned, it appears that the proceeding was started against the accused for issuing a cheque knowing it fully well that it would not be honoured. In order to prevent such act of unscrupulous persons, special provisions have been made in the N.I. Act. The provisions of the N.I. Act cannot under any circumstances be equated with the provisions of the Provident Fund Act where the main intention was to recover and realise the Provident Fund amount which was due to the workers. The realisation of the amount in question, in my opinion, can only be a mitigating circumstance for imposing penalty upon the concerned accused. As soon as it has been proved that the offence has been committed, then the accused person is certainly liable to be punished for the violation of the same. It will be improper to hold that if the amount is paid, then the accused concern is liable to be acquitted although the payment was made belatedly. So far as the present case is concerned, it appears that the accused did not pay the amount voluntarily. It is the admitted position that after obtaining decree from the Civil Court, the complainant could realise that amount along with interest. As such, the accused cannot under this circumstance, claim benefit of the decisions, as cited on his behalf. Under such circumstances, I reject this contention of the learned Advocate for the accused/respondent. To my mind, the accused is certainly liable to be punished if the complainant is in a position to prove that the proceeding against the accused is maintainable in the eye of law and that the accused violated the provisions of Section 138 of the N.I. Act and there by liable to be punished.

24. Let us now see as to whether from the materials on record it can be said that the proceeding, in question, as filed against the accused by the complainant is maintainable in the eye of law or not.

25. The learned Advocate for the respondent vehemently argued that this petition of complaint was not maintainable as the Proprietor himself did not sign the petition of complaint. Nor he came forward before the Court to give deposition in support of his claim. According to him, the authorisation, as allegedly given by the Proprietor, will not cure this defect and at least permission of the Court is required to be obtained by the Proprietor in proceeding with the petition or complaint through its authorised agent. It is the admitted position that the cheque was issued in the name of a Proprietorship Firm. It appears from the petition or complaint that it was filed on behalf of the Proprietor by his agent who has allegedly been authorised by the said Proprietor. Nowhere it appears that the permission of the Court was obtained by the Proprietor in this respect. It appears from the Full Bench decision of Andhra Pradesh High Court 2006 (1) DCR page 229 (supra) it has been held “we hold that the power of attorney of a payee or a holder in due course of a dishonoured cheque can file a complaint for an offence under Section 138 of the Act after obtaining permission from the Court, either before or after filing of the complaint”. In the decision reported in 2005 (2) DCR page 439 (supra) learned single Judge of the Madhya Pradesh High Court actually made survey of all the earlier decisions in this respect and thereafter came to the conclusion that the petition of complaint could be presented by the G. P. A. on behalf of the payee provided the complaint is signed by the payee himself and an affidavit in proof of his execution of the G. P. A. is filed and other formalities are observed. But so far as the present case is concerned, I have already pointed out that it was instituted by one Prasanta Kumar Basu describing himself as the authorised representative of M/s. L. M. Enterprises. There cannot be any doubt that this authorised agent is neither the payee nor the holder of the cheque in due course. So far as the present case is concerned, it appears that only a letter of authority had been produced by the person concern. There is nothing on record that the Proprietor executed a General Power of Attorney in favour of that person and there is also no such proof that the Proprietor gave declaration before the Court to that effect or that permission of the Court was obtained for filing the petition of complaint through the authorised agent.

26. To counter this position, the learned Advocate for the appellant cited decision reported in 1993 C, Cr. L. R. (Cal) page 225 (supra) wherein the learned single Judge of this Court held that authorised agent can file the petition of complaint. But in the said decision it has been observed by the learned single Judge that the authorised person is entitled to file the case on behalf of another person provided he is otherwise competent to file the petition of complaint. I have already pointed out that the Full Bench of the Andhra Pradesh High Court, clearly spelt out the conditions which are to be followed while permitting any such person to file the petition of complaint. There is no doubt that those conditions have not been fulfilled in filing the present petition of complaint. As such this decision, as relied upon by the appellant is of no help to him.

27. Learned advocate for the appellant further relied upon the decisions (supra) and

(supra) in support of his contention that an authorised agent can file a petition of complaint on behalf of the company. It appears that in those cases complainants were the companies, who were undoubtedly juristic persons. Hon’ble Supreme Court held that there must be a person to represent such juristic person in the Court of law and as such a person duly authorised by the company can file the petition of complaint on behalf of the said company. But so far as the present case is concerned, admittedly the complainant is the Proprietor of a Firm and so he can very well come forward to the Court for filing the petition of complaint. So, these two decisions are of no help to the complainant/appellant and I think that the Full Bench decision of the Andhra Pradesh High Court should be followed in deciding this question.

Learned Advocate for the appellant further argued by pointing out decision reported in 2005 Cri LJ page 3572 (supra) and contended that the authorised person of the complainant can file the petition Or complaint. I have perused the said decision. It appears that there it has been clearly mentioned that the complaint can be presented by a General Power of Attorney holder, on behalf of the payee provided certain conditions are observed. It may be pointed out here that the person concerned, who filed the petition of complaint, is not the General Power of Attorney holder of the payee. Nor it can be said that he is the holder of the cheque in due course. As such this decision, in my considered opinion, cannot under any circumstances, be of any help to the cause of the complainant/appellant.

28. Therefore, from my above discussion, I am of opinion that the learned Sessions Judge was perfectly justified in holding that this Prasanta Kumar Basu, the alleged authorised agent of the Proprietor, had no authority to file the petition of complaint against the accused on behalf of the Proprietor. The petition of complaint, as filed before the learned Magistrate, under such circumstances must be held to be defective and the entire proceeding is liable to be set aside. In this respect, I fully agree with the views of the learned Sessions Judge and I find no scope for interference into the said finding.

29. Therefore, from my above discussion, I am of opinion that the learned Sessions Judge was perfectly justified in holding that the petition of complaint, as filed against the accused, is not at all maintainable in the eye of law and as such the proceeding is liable to be set aside. Since it appears that the proceeding is not maintainable, so the accused cannot be held guilty for the offence charged with and he is entitled to be acquitted. The appeal in question, under such circumstances, is liable to be dismissed, in view of my discussion made above.

30. In the result, the appeal and the same is dismissed on contest. The judgment dated 31-1-2001 passed by the learned Sessions Judge, 8th Bench, City Sessions Court in Criminal Appeal No. 21 of 1999 is affirmed.

31. Send a copy of this judgment along with the L. C. R. to the Court below at once for information and taking necessary action.

32. Xerox certified copy, if applied, may be handed over to the parties on urgent basis.

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