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Judgment
Satpal, J.—This petition has been filed u/s 482 of the Criminal Procedure Code (In short the ''Code'') and in this case the petitioner has challenged the order dated 15th of July 1993 passed by the learned trial Court and the judgment and order dated 24th October 1994 passed by learned Additional Sessions Judge, Rewari.
By order dated 11th July 1993 the learned trial Court has summoned the petitioner, who was one of the partners of the Parag Ice and Oil Mills, u/s 138/142 of the Negotiable Instruments Act, 1881 (in short the ''Act''). The petitioner filed a revision petition against the aforesaid order passed by the learned trial Court and the said revision petition was dismissed by the learned Additional Sessions Judge, Rewari by his judgment dated 24th October 1994.
Mr. Aggarwal the learned counsel appearing on behalf of the petitioner submits that as per allegations made in the complaint, the cheques in question were presented for payment on 8th October 1992 whereas the petitioner ceased to be a partner of M/s Parag Ice and Oil Mills with effect from 31st May 1992 in terms of a partition deed signed between the partners of the firm. He further submits that vide letter dated 20th October 1992 the said firm had informed the complainant that M/s Parag Ice and Oil Mills Aligarh had been duly petitioned and dissolved on 17th October 1992 and the firm was opening a new bank account and the cheques in question be returned to the firm to enable the firm to issue new cheques. He submits that inspite of the aforesaid communication, the complainant presented same cheques with mala fide intention on 8th December 1992 and the said cheques were dishonoured. He, therefore, contends that the notice issued under the provision of the Act was invalid and as such the complaint should be quashed.
I, however, do not find any merit in the contentions urged by the learned counsel for the petitioner. Admittedly the petitioner has already availed himself the remedy of filing the revision petition against the impugned order of summoning and the said revision petition was dismissed by the learned Additional Sessions Judge, Rewari on 24th October 1994, In view of these facts, the present petition which has been filed under the garb of Section 482 of the Code is not maintainable. The learned counsel for the petitioner, however, referred to a judgment of this Court in Hamir Singh v. Bhag Singh (1995) 2 Rec Cri R 1. This judgment was rendered by a learned Single Judge of this Court on 7th November 1994. I, however, find that the Supreme Court in a recent case in Deepti alias Arati Rai Vs. Akhil Rai and Others, has held that the second revision petition even though filed u/s 482 of the Criminal Procedure Code is not maintainable. In this connection it will be relevant to reproduce the following observation of the Supreme Court made in the said case.
"The High Court also should have taken care to verify the record before accepting the concession made by the learned Govt. Advocate. It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court is not maintainable and that inherent power u/s 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code."
In view of the law laid down by the apex Court, I am of the view that the present petition is not maintainable. Even otherwise I do not find any merit in the contentions of the learned counsel for the petitioner. Regarding first contention the petitioner admittedly was one of the partners on the date when the cheques in question were issued by the firm. Whether he ceased to be a partner thereafter is not the relevant question which can be gone into in the proceedings u/s 482 of the Code. Regarding second contention of the petitioner that the firm had issued a letter to the complainant that they had closed the bank account because of the partition of the firm, involves a question of fact which again can not be gone into in the proceedings u/s 482 of the Code.
The reasons recorded herein above, the petition is dismissed.
At this stage the learned counsel for the petitioners submits that the petitioner is more than 70 years old and as such he should be given permission to appear through his counsel in the trial Court. I direct that this point may be taken before the learned trial Court and the learned trial Court after going into the facts and circumstances of the case shall be at liberty to grant such permission if deemed necessary.