APPLN.2614-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 2614 OF 2010 M/s. Vijay & Co. & Anr. ...Applicants Vs. The State of Maharashtra & Anr. ...Respondents *** Mr. M. K. Kocharekar, for the Applicants. Mr. A. S. Shitole, APP for the Respondent-State. Mr. S. V. Kotwal i/b Manoj S. Mohite, for Respondent No.2.. *** CORAM: V. M. KANADE J. DATE : AUGUST 23, 2010 P.C. 1. Heard the learned counsel appearing on behalf of the applicants and respondent No.2. The applicants are challenging the order of issuance of process passed by the learned Magistrate on a complaint, filed under S. 138 of the Negotiable Instruments Act. Firstly, it is submitted that no notice was issued to the drawer of the cheque, and hence the complaint itself is not maintainable. 2. Secondly, it is submitted that the cheque was drawn by a APPLN.2614-10 - 2 - firm and signed by one of its partners. It is submitted that admittedly notice was not issued to the firm but to the partner i.e. signatory of the cheque. It is submitted that therefore, in view of the mandatory provisions of section 38 of the N.I. Act, notice was not served on the drawer. It was then submitted that the provisions of Sec. 93 of the N.I. Act in respect of the mode of service, specifically laid down under the Act would over-ride the provisions of S. 24 of the Indian Partnership Act, 1963. 3. Secondly, it was submitted that the trial Court has no jurisdiction to try and decide the said complaint since only notice was issued by the complainant from Thane though the entire cause of action had arisen in Bombay and Vikroli. Thirdly, it was submitted that since the accused are residing outside the jurisdiction of Thane Court, the learned Magistrate ought to have postponed issuance of process under S. 202 Cr.P.C. Lastly, it was submitted that the verification was in a fixed format and therefore, it was contrary to the guidelines laid down by this Court in the case of – Amarnath Baijnath Gupta & Anr. Vs. Mohini Organics Pvt. Ltd.& Anr. [2009 All. M. R. (Cri.) 184]. It is submitted that a false statement was made in the verification that notice has been issued to the drawer when admittedly, the notice was addressed to the APPLN.2614-10 - 3 - partner of the firm. 4. On the other hand, the learned counsel appearing on behalf of respondent No.2 submitted that the plea of the accused was already recorded and the complainant had tendered his affidavit-in-lieu of evidence and therefore, in view of the judgment of the Apex Court in the case of – Subramanium Sethuraman Vs. State of Maharashtra & Anr. [(2004) 13 SCC 324] it is submitted that in view of the provisions of Sec. 24 of the Indian Partnership Act, a notice given to a partner of the firm amounted to a good service and therefore, in the present case since the notice was admittedly served on the partner, it is amounting to a good service on the firm. He submitted that even in the reply given to the said notice, the accused had treated the said notice as notice to the firm. He then submitted that in view of the judgment of the Apex Court in the case of – K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr. [1999 SCC (Cri) 1284], the Thane Court has also jurisdiction to try and decide the complaint. 5. I have heard both the counsel at length. In my view, the submissions made on behalf of the applicant cannot be accepted. Apart from the fact that plea has been recorded, even otherwise the submission of the learned counsel for the applicants are not sustainable in law. APPLN.2614-10 - 4 - Section 24 of the Indian Partnership Act clearly lays down that a service of notice on one of the partner is a good service on the firm. Sec. 24 of the Indian Partnership Act reads as under- “24. Effect of notice to acting partner – Notice to a partner, who habitually acts in the business of the firm of any matter relating to the affairs of the firm operates as notice to the firm, except in the case of a fraud on the firm committed by or with the consent of that partner.” The manner and mode of service on a partnership firm is therefore laid down under S. 24 of the said Act and to that extent one of the partners is served which amounts to a good service on the firm. Section 93 of the Negotiable Instruments Act clearly mentions that notice has to be given to all the parties, who according to payee, is liable. Section 93 therefore, will not override section 24 of the Indian Partnership Act, 1932. In any event this issue can always be decided by the trial Court at the time of deciding the case. 6. So far as the question of jurisdiction is concerned, in view of the judgment of the Apex Court in the case of K. Bhaskaran (supra) , the Thane Court also has jurisdiction to try and decide the criminal case. Lastly, the provisions of Sec. 202 Cr. P. C. are directory in nature and therefore, after inquiry is made by the Magistrate under S. 202 Cr.P.C., a APPLN.2614-10 - 5 - discretion vests in the Magistrate to either postpone the issuance of process or to issue process on the basis of material which is placed before him. 7. So far as verification is concerned, it is true that guideline in this regard, have been laid down in the case of - Amarnath Baijnath Gupta & Anr. v. Mohini Organics Pvt. Ltd. & Anr. [2009 ALL MR (Cri) 184]. However, in each and every case merely because the verification is recorded in a fixed format, that cannot be a ground for remanding all cases, where verification is already recorded. In a case which is filed under S. 138 of the Negotiable Instruments Act, the trial Court has to examine the true facts for coming to the conclusion whether prima-facie case is made out or not. If the verification of the complainant discloses the existence of cause of action and fulfillment of the prima facie requirement under Sec. 138 of the N. I. Act, the trial Court can still issue process on the basis of such a verification. In my view, it is not necessary to set aside the said verification and direct the Magistrate to record afresh verification. The trial under Sec. 138 of the N.I. Act is a summary trial. However, various attempts are made by the parties to prolong and protract the litigation by filing various types of applications. Such a practice has been deprecated by the Supreme Court in the case of – APPLN.2614-10 - 6 - Adalat Prasad Vs. Rooplal Jindal [2004 ALL MR (Cri.) 313 (S.C.)] . The applicants are at liberty to file an application for exemption before the trial Court. On such an application being made by the applicant, in the light of guidelines laid down in various judgments of our Court and the Apex Court, the trial Court shall decide the same on merits and in accordance with law. . The criminal application is therefore, dismissed with above directions. [ V. M. KANADE J.]