Vijay Bishnoi, J. - This criminal revision petition has been filed by the petitioner being aggrieved with the judgment dated 31.07.2015 passed by Additional Sessions Judge No.3, Chittorgarh (for short ''the appellate court'' hereinafter) in Criminal Appeal No.121/2014, whereby the appeal preferred by the petitioner against the judgment dated 15.07.2013 passed by the Additional Chief Judicial Magistrate No.2, Chittorgarh (for short ''the trial court'' hereinafter) in Cr.Case No.242/2012 (190/07) has been dismissed. The trial court vide judgment dated 15.07.2013 has dismissed the complaint filed by the petitioner under section 138 of the Negotiable Instrument Act (for short ''the N.I.Act'' hereinafter).
2. Learned counsel for the appellant has argued that before the trial court, the petitioner had sufficiently proved that the accused-respondent had borrowed a sum of Rs. 35,000/- from her and handed over two cheques to her for the purpose of repayment of said loan, however, when the petitioner presented the said cheques in the concerned bank for realisation, the same were dishonoured with the endorsement that the account has been closed. It is also argued that the petitioner proved that she had served a notice upon the respondent No.1, however, despite service of notice, respondent No.1 has failed to pay the amount mentioned in the cheques and then the petitioner had filed a complaint under section 138 of the N.I.Act before the trial court within limitation. It is further argued that the trial court has dismissed the complaint filed by the petitioner under section 138 of the N.I.Act solely on the basis of minor contradictions in the statement of the petitioner. It is submitted that the said minor contradictions in the statement of the petitioner do not have any significance and the trial court should have ignored the same. It is further argued that the appellate court has also not taken into consideration the evidence available on record and illegally rejected the appeal filed by the petitioner. It is thus prayed that both the impugned judgments being contrary to the facts and law may be set aside.
3. Heard learned counsel for the petitioner and perused the impugned judgments.
4. The trial court in its judgment dated 15.07.2013 has specifically observed that during her cross-examination, the petitioner had stated that she does not remember that how much amount was given by her to accused-respondent and on which date. She also stated that she also does not remember that the cheques Ex.P/1 and P/2 handed over to her by respondent No.1 are of which date. The trial court has also observed that cheque - Ex.P/1 was issued by Jagdish in the capacity of proprietor of Pankaj Engineering Works, whereas cheque � Ex.P/2 was issued by him in his personal capacity and the petitioner has filed complaint against Jagdish only and not made the firm Pankaj Engineering Works as accused nor made Jagdish as accused as a proprietor of the said firm. The trial court has also observed that from perusal of Ex.P/5 - notice sent by the petitioner through her Advocate, it is clear that the notice was given to Jagdish as a proprietor of Pankaj Engineering Works, however, Jagdish has not been made as accused as proprietor of Pankaj Engineering Works. Neither the Pankaj Engineering Works has been made as accused and therefore, it is clear that the notice Ex.P/5 was sent to Jagdish in the capacity of proprietor of firm Pankaj Engineering Works and not in his personal capacity and, therefore, also the accused-respondent cannot be held guilty for the offence punishable under section 138 of N.I.Act.
5. The appellate court has also taken into consideration the fact situation and held that notice Ex.P/5 was not sent by the petitioner to the accused-Jagdish in the capacity of proprietor of Pankaj Engineering Works but he was made accused in his personal capacity and it cannot be said that the petitioner has proved the case against the accused-respondent for the offence punishable under section 138 of the N.I.Act.
6. After going through the impugned judgments, this Court is also of the opinion that both the courts below have not committed any illegality in passing the impugned judgments because the petitioner has failed to implead the proprietor-Jagdish or the Pankaj Engineering Works in her complaint though the notice Ex.P/5 was sent to Jagdish in the capacity of proprietor of Pankaj Engineering Works.
7. Hence, there is no force in this revision petition and the same is hereby dismissed.
