Criminal Revision No.439 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Cr.Revision No.439 of 2011 (O&M) DATE OF DECISION : 25.7.2011 Suman Soni PETITIONER VERSUS Ashwani Soni RESPONDENT CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri A.R.Takkar, Advocate for the petitioner. Proxy counsel for the respondent. MAHESH GROVER, J. This revision petition is directed against the order dated 14.10.2010 of the learned Additional Sessions Judge, Chandigarh vide which the appeal filed by the present respondent against the conviction and sentence awarded to him by the order dated 10.7.2009 of the learned J.M.I.C., Chandigarh was accepted. The dispute is in the backdrop of a matrimonial nature. In the proceedings under Section 125 Cr.P.C., maintenance was awarded to the petitioner. In order to discharge his liability, the respondent issued a cheque which was dishonoured. The respondents, however, made payment of the entire amount to the petitioner including the amount which was given by way of a cheque. She Criminal Revision No.439 of 2011 -2- preferred a complaint under Section 138 of the Negotiable Instruments Act and the same was accepted and the respondent was convicted and sentenced to undergo RI for 6 months and to pay a fine of Rs.1000/-. The Appellate Court while dealing with the appeal, set aside the order on the premise that the petitioner had not served a notice in compliance of the mandatory provisions of Section 138 of the Negotiable Instruments Act and also observed that the entire amount stood paid to the petitioner before the order of summoning was passed and this fact was concealed by the petitioner. Learned counsel for the petitioner contends that notice had been duly served and, therefore, the findings recorded in the impugned order are erroneous. He however, contends that it is not disputed that the amount has been paid to him. Learned counsel for the respondent has referred to the findings recorded in the impugned order in para-14 of the order wherein the Court has observed that notice was indeed issued to the petitioner, but at an address where the respondent was not residing. It is thus, contended by the learned counsel for the respondent that this cannot be deemed to be a proper compliance of the mandatory provisions of Section 138 of the Negotiable Instruments Act, as he was never informed with a notice. That apart, he has contended that the amount already stood paid and this fact was deliberately concealed by the petitioner and further, divorce has since been granted to the parties and the respondent has re- married. The factum of the amount having been paid and the divorce having been granted is not disputed by the learned counsel for the petitioner. However, he states that an appeal has been preferred by the petitioner. On due consideration of the matter, I am of the opinion that no infirmity has been committed by the learned court below while passing the impugned order. As per the record, notice was issued to the petitioner as a Criminal Revision No.439 of 2011 -3- measure of compliance of Section 138 of the Negotiable Instruments Act at an address which was at variance with the address of the respondents where he currently resided and from where the cheque was issued. This was to the knowledge of the petitioner, as is evident from her statement itself. In this view of the matter, it cannot be said that there was compliance of the provisions of Section 138 of the Negotiable Instruments Act. The purpose of issuance of notice apparently stood defeated in view of the address of the respondent being given at a place where he did not reside at the time of the issuance of the cheque and at the time of filing of the complaint. Besides, the Court has rightly appreciated that the amount stood already paid and the petitioner did not disclose this fact to the Court at the relevant time leading to the summoning of the respondent. It is obvious that the petitioner had not come to the Court with clean hands and was rather interested in settling the scores on account of the scars of her broken marriage. For the afore-stated reasons, there is no merit in the petition which is dismissed. (MAHESH GROVER) July 25, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO