HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.4443 of 2009 Dated : 17.08.2009 Between : M.Janardhan Goud ….. Petitioner a n d The State of A.P. & another ….. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition No.4443 of 2009 ORDER: Heard Sri G.Venkata Reddy, learned counsel for the petitioner, Sri S.V.Govardhan Reddy, learned counsel for the second respondent, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor, for the first respondent. The petitioner being aggrieved by the dismissal of Crl.M.P.No.236 of 2009 in Crl.A.No.61 of 2007 filed under Section 391 of the Code of Criminal Procedure by the I Additional Sessions Judge, Kurnool, on 12.06.2009, filed this criminal petition. The petitioner claims that the second respondent, who claimed to have sent notices to four addresses of the petitioner, in which the petitioner was not present by the date of notice, had marked the returned postal covers as Exs.P.8 to P.10 and also alleged that the postal cover sent to Swapna Talkies was served on one Sri T.Nagi Reddy, who is alleged to be an employee of the petitioner. The petitioner also claims to have filed a copy of Form-23 issued by the Regional Provident Fund office, Kurnool, to show that said Sri T.Nagi Reddy, who is alleged to have received the registered postal cover, is not an employee of the petitioner and that Ex.P.7 alleged to be the postal acknowledgment of Sri T.Nagi Reddy in proof of service of the notice was managed by the second respondent. The petitioner also claimed that even during the examination under Section 313 of the Code of Criminal Procedure before the trial Court, he stated about having no relationship with Sri T.Nagi Reddy and not receiving any notice and therefore, the petitioner sought for examination of the postmen, who allegedly served Exs.P.7 to P.10, to prove that the petitioner was not present in the addresses by the dates of notices. The Court of Session observing that the issue was already observed in para 12 of the judgment of the trial Court, considered the petition to have been filed to drag on the proceedings and rejected the petition. The petitioner herein contends that the Appellate Court should have given an opportunity to him to establish that he was not served with any notice consequently to show that the second respondent failed to comply with the mandatory provisions of Section 138 of the Negotiable Instruments Act. As no conviction should have been imposed under Section 138 of the Negotiable Instruments Act in view of the violation of the mandatory provisions, the crucial issue of service of notice should have been allowed to be proved by the petitioner by examining the postmen concerned. It is seen from the copy of the judgment in C.C.No.196 of 2004 on the file of the Judicial First Class Magistrate, Kurnool, that the trial Court, apart from other things, had also considered the claim of the petitioner herein about the failure of the second respondent herein to serve statutory notice under Section 138 of the Negotiable Instruments Act entitling the petitioner herein to be acquitted. Without going into the merits and reasoning of the trial Court for rejecting the contention of the petitioner, it has to be noted that the trial Court specifically dealt with the allegations of the petitioner about his absence at the given addresses at the relevant time, the absence of any connection between him and Sri T.Nagi Reddy and the correctness of the endorsements made on Exs.P.7 to P.10 and held against the petitioner on these aspects. In the grounds of appeal also, the petitioner had specifically contended that the service of notice on Sri T.Nagi Reddy cannot amount to service of notice on him and the clear statement made by the petitioner during the examination under Section 313 of the Code of Criminal Procedure and Form-23 issued by the Regional Provident Fund Commissioner should not have been ignored by the trial Court. He contended that Form-23 clearly proved that Sri T.Nagi Reddy is not a worker in Swapna Talkies. It is of course, for the Court of Session to consider the acceptability and credibility of the contentions raised by the petitioner in this regard and it is in connection with the said contention, the petitioner requested to summon the postmen. But, the Court of Session opined that this issue was already considered by the trial Court in its judgment and therefore, refused to entertain the petition and the same does not appear to be improper or illegal as it is not the claim of the complainant that the petitioner was present at any of the given addresses when the notices in question were taken to such addresses by the postmen concerned. The second respondent also claimed service of one of the notices on one Sri T.Nagi Reddy claimed to be an employee of the petitioner and if the petitioner had already made out that there was no connection between him and Sri T.Nagi Reddy as contended by him in the light of form-23 of the Regional Provident Fund Commissioner filed by him, the examination or non- examination of the postmen concerned will make no material difference to his contentions. The petitioner himself claims that he had gone underground to protect himself from his creditors during the relevant period and therefore, the claims that the notices could not be served on him at any of the given addresses based on the endorsements made by the postmen concerned on the relevant communications cannot be considered ex facie incredible or fabricated. Under the circumstances, summoning the postmen as sought for by the petitioner, does not appear to be making any material difference to the credibility or otherwise of the prosecution story of the second respondent or the defence of the petitioner and the Court of Session, which refused to exercise its judicial discretion under Section 391 of the Code of Criminal Procedure, cannot be found fault with. In fact, if the Court of Session considered any additional evidence to be necessary, it shall have to record its reasons and if it finds no adequate or satisfactory reasons for any such additional evidence, it may refuse to summon any such witnesses. The inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure available only in rarest of rare cases to be exercised with great care, caution and circumspection, cannot be exercised in the present case to interfere with the orders of the Court of Session and therefore, the criminal petition should fail. The criminal petition is dismissed accordingly. ______________________ G.BHAVANI PRASAD, J 17th August, 2009 SUR