ALIAS ABDUL KARIM KHATRI Vs. MAHAVIR PURSHOTTAM BHARGVE

JUDGEMENT

(1.) Against the concurrent judgment and orders in proceed ings under section 138 of the Negotiable In struments Act. The present Revision Appli cation is filed by the original accused No. 3.

(2.) The three contentions which have been raised by Mr. Mishra appearing in support of this Revision Application are that the no tice under section 138(B) has not been served upon accused No. 3. He submits that the accused was at one time a partner of the firm. The accused thereafter had severed his con nections with the firm and had no associa tion therewith. Therefore, the complainant was required to serve the notice at the ad dress at which accused No. 3 was residing. He states from the record and more particu larly from the deposition of the postman, it is clear that the service is not effected on accused No. 3 as the packet has come back with an endorsement "not known" . There fore, the pre-condition for proceeding under section 138 not being satisfied, the complaint was not maintainable. The orders under chal lenge are required to be quashed and set aside on this ground alone.

(3.) Alternatively and without prejudice, he submits that in this case, the complainant is one Mahavir Purshottam Bhargve. The accused are M/s. A.A. Khatri & Company, Mr. Abdul Rehman Khatri and the presentapplicant. However, the applicant had re signed from the partnership in the year 1998. The partnership business may have been con tinued but had no association therewith per sonally. Therefore, it is clear that the applicant could not have been proceeded against under section 138 of the Negotiable Instruments Act, 1881. Even if he is arrayed as an accused, once it is apparent that he has ceased to be a part ner, then, his conviction is bad in law. The ap peal ought to have been allowed by the lower Appellate Court, but the same also did not perform its duty in law.