THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2373 OF 2004 BETWEEEN: Sakila Brahma Reddy … Appellant AND Shivasri Rice Mill, Hyderabad, rep.by its Partners, Shivasri Sreenivasulu, Hyderabad and another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2373 OF 2004 JUDGMENT: The complainant questions acquittal of A-1 and A-2 of the offence under Section 138 of Negotiable Instruments Act (in short, ‘the Act’) recorded by the II Additional Judicial Magistrate of the First Class, Gurazala in C.C.No.107 of 2002 by judgment dated 20.08.2004. 2. Exs.P-1 and P-2 are the cheques issued by A-1 namely Shivasri Rice Mill for Rs.1,00,000/- and Rs.50,000/- respectively, allegedly for supply of paddy by the complainant to the said rice mill. There are two partners in the said rice mill namely Shivasri Srinivasulu and Dubba Venkateswarlu (A-2). A-1 rice mill was represented by Shivasri Srinivasulu as its partner. The lower Court found fault with the complainant on the ground that Shivasri Srinivasulu is not impleaded as accused in his individual capacity and therefore, the complaint is bad for non-joinder of necessary parties. When Shivasri Srinivasulu was representing A-1 rice mill in the capacity as partner, there was no necessity to implead him again in his personal capacity. A partnership is no juristic person in the eye of law. Only the partners are liable for the activities of the partnership firm. This ground stated by the lower Court is unsustainable in law. 3. The lower Court further commented that there is no service of notice under Section 138(b) of the Act on the accused prior to institution of the complaint. The complainant filed Ex.P-7-office copy of legal notice dated 30.03.2002 issued by his counsel. Except filing office copy of the legal notice, the complainant did not choose to file postal receipts to show that the said notice was despatched to A-1 and A-2 and postal acknowledgments to show that the said notice copies were served on A-1 and A-2. The complainant did not also file returned covers of notices also. In the absence of filing of postal receipts or postal acknowledgments or returned postal envelops containing notices, the lower Court rightly observed that there is no proof of sending of notices by the complainant to A-1 and A-2. The appellant filed photostat copies of two postal receipts and two returned covers along with this appeal. Filing of photostat copies of postal receipts and returned envelops along with the appeal will not cure the defect of non-filing of original documents in the lower Court during trial and marking them as exhibits. In the absence of the postal receipts and returned envelops before the Court, this Court also cannot help the complainant/appellant on this aspect. 4. The lower Court further observed that there were material alterations in Exs.P-1 and P-2 cheques. Simply because name of the payee/complainant is written subsequently with a different pen by a different person, it is no ground for coming to the conclusion that there was any material alteration in Exs.P-1 or P-2. But the material alteration is in respect of striking out one name and writing another name as payee. The lower Court observed that originally name of one Shankar was written. The said payee’s name was struck off and in that place, name of the complainant Sakila Brahma Reddy was written. The said alteration was not authenticated by the drawer by attesting the said alteration. Further, the lower Court found that there were alterations in the dates as well as in the years without attestation by the drawer. According to the accused, the year in Exs.P-1 and P-2 was corrected from 1999 to 2001 to save limitation. Having regard to the said unattested alterations in the dates, years and names of the payee, it cannot be said that the lower Court went wrong in finding that there are material alterations in Exs.P-1 and P- 2. It is contended by the appellant’s counsel that the accused did not lead any evidence to speak to the said alterations. But the complainant who was examined as P.W.1, was cross examined on this aspect at length. P.W.1 admitted the alterations in the dates and years, but denied the alteration in the name of the payee. Since the complainant was the custodian of the cheques-Exs.P-1 and P-2, it is for him to explain the corrections or alterations in material aspects of the cheques and to obtain attestation/authentication of the said alterations by way of signatures of the drawer therein. In the absence of the drawer attesting those alterations, the lower Court is justified in holding that the said alterations, which are material in nature, are unauthorized. Therefore, Exs.P-1 and P-2 cheques are unenforceable in law. In that view of the matter, the lower Court rightly found the accused not guilty of the offence under Section 138 of the Act. There are no grounds in this appeal to interfere with the said finding recorded by the lower Court. 5. In the result, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 08.08.2011 AMD THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2373 OF 2004 DATED: 08.08.2011 AMD