1 (crim wp 1485 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1485 OF 2010 Smt. R. Umadevi ...Petitioner Vs. State of Maharashtra and Anr. ...Respondents ----- Mr.S.A. Oak i/b. M/s.Mahesh Menon and Co. for Petitioner Mr. Naren Thakure i/b. Ms. Dimple K. Shah for Respondent No.2 Mrs. M.R. Tidake-APP for the State ----- CORAM: V.M. KANADE J. DATED: 31ST AUGUST, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioner and the Learned Counsel for the Respondent NO.2 2. By this petition, which is filed under Article 227 of the Constitution of India and under section 482 of the Code of Criminal Procedure, the Petitioner is challenging the order of issuance of process passed by the Learned Magistrate on a complaint filed under section 138 of the Negotiable Instruments Act. 2 (crim wp 1485 of 2010) 3. The Petitioner, initially, had filed a revision application in the Sessions Court. However, the revision application was also dismissed. It is contended by the learned Counsel for the Petitioner that the Trial Court ought not to have issued process on the complaint filed by the Complainant since the statutory demand notice was not served on the Petitioner herein. He invited my attention to the complaint which was filed by the Complainant, he submitted that in the complaint, the Petitioner is shown as the proprietor of M/s.K.C. Textile. He submitted that, however, the notice was addressed to one S.Ramanathan. He submitted that no material on record to show that the notice was issued to the Petitioner herein or was served on her. He submitted that even the notice which is annexed to the complaint, is the notice which was addressed to Mr. S.Ramanathan. He submitted that, therefore, in view of the judgement of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla reported 3 (crim wp 1485 of 2010) in AIR 2005 Supreme Court 3512, the process which was issued was liable to be quashed. He also invited my attention to the judgment of the Learned Single Judge of this Court in the case of Bipin J. Shah vs. Smt. Niru B. Mehta reported in 2001 (2) Mh.L.J. Page 632. 4. On the other hand, Shri Thakure, the learned Counsel appearing on behalf of the Respondent No.2 submitted that Mr.S.Ramanathan was the authorized representative of the Petitioner herein and the said notice was sent on the address where the said proprietary firm had its office. He submitted that, therefore, merely because the said notice was not addressed to the proprietor that would not be a ground for contending that the notice was not served on the proprietary firm. He submitted that, therefore, this issue was a disputed question of fact which would be decided only at the stage of trial. 4 (crim wp 1485 of 2010) 5. In my view, the submission made by the learned Counsel for the Petitioner, at this stage, cannot be accepted. It does appear that the notice was addressed to S.Ramanathan, but it is the case of the Complainant that he was the authorized representative of the proprietor and he always had dealings with the Complainant. In paragraph 3 of the complaint, it is stated that in October, 2007, the Accused through her representative one S.Ramanathan requested his firm to advance certain amount as short term loan. Similarly, in paragraph 5 also a similar reference has been made. In paragraph 11, there is a clear reference that the notice dated 22 nd September, 2008 was addressed to the accused firm and S.Ramanathan (Authorized Representative). This issue,therefore, in my view, will have to be decided at the stage of trial. Hence, it is not possible to interfere with the order of issuance of process. Writ petition is, therefore, dismissed. 5 (crim wp 1485 of 2010) 6. The Petitioner shall appear before the Trial Court and her plea be recorded on the same day. The Petitioner, thereafter, shall be exempted from appearing in the Trial Court if she is represented by her advocate and her advocate undertakes to proceed with the case. However, if the Petitioner’s advocate does not appear, then appropriate directions may be given by the Learned Magistrate, including issuance of warrant, if necessary. The statement of the Petitioner-accused under section 313 of the Cr.P.C. may also be recorded through her advocate subject to an undertaking given by the Petitioner that she will not dispute the correctness of the said answers given in the said statements. 7. With these directions, the petition is disposed of. (V.M. KANADE J.)