1 CRA-361-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL REVISION APPLICATION NO. 361 OF 2010 Mr. Ajay Asharam Shukla ... Petitioner (Orig. accused No.2) Vs. Vidhya Pharmachem Pvt. Ltd. & Anr. Respondents (Resp.No.1 is original complainant) Mr. Ashok Bhatia, Advocate, for the petitioner. Mr.S.V.Marwadi i/b. Mr. Vinay V.Vyas,Advocates for the respondent No.1. Smt. V.R.Bhosale, APP, for the respondent No.2 State. CORAM: J.H.BHATIA,J. DATE : 4th May, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. The Revision Application is filed challenging the order of conviction for the offence under Sec. 138 of Negotiable Imprisonment and sentence of simple imprisonment for six months and to pay an amount of Rs.30,000/- as compensation, passed by the Metropolitan Magistrate, 43rd Court, Borivli in C.C. No.1340/SS/2005, which was maintained in Criminal Appeal No.11/2008. 3. To state in brief, the Revision petitioner was originally shown as 2 CRA-361-10.sxw accused No.2. The original accused Nos. 1 and 3 were deleted and the matter proceeded only against the present petitioner. It was a case of complainant/respondent No.1 that it had supplied pharmaceutical material to Sai Cure Pharmaceuticals Pvt.Ltd. It was contended that Sai Cure Pharmaceuticals Pvt.Ltd, Wellcure Pharma (India) Pvt.Ltd. and M/s. Wellcure Lifescience are the three sister concerns, while first two are the Private limited Companies, the third is the partnership firm and the accused persons were the directors of the said two companies and also partners in M/s.wellcure Lifescience. In part payment of the dues, the present petitioner as a partner of M/s. Wellcure Lifescience had issued a cheque No.237643 for Rs.30,000/- drawn on Bombay Mercantile Co- operative Bank, Malad Branch. On presentation, the cheque was dishonoured for want of sufficient funds. Inspite of service of statutory notice, the petitioner failed to make payment. Therefore, the complaint was filed under Sec. 138. 3. The petitioner contended that even though he was previously a director of the Sai Cure Pharmaceuticals Pvt.Ltd, he was removed from the directorship on 20.9.2002, while the alleged cheque was issued on 25.9.2002. He admitted that he had not resigned from the directorship. He also examined himself as a defence witness. The trial court noted that even though the present petitioner/accused had contended that he was removed from the directorship prior 3 CRA-361-10.sxw to the date of issuance of the cheque, he had admitted that he had entered into a settlement and had filed the consent terms and had also filed an undertaking to make the payment on 17.1.2006. That undertaking was not only about the amount of this cheque, but also about the amount of another cheque and the total amount was Rs.3,38,000/-. Both the Courts below gave concurrent finding that the petitioner had issued the cheque in discharge of legally enforceable liability and the cheque was dishonoured and he had failed to make payment of the cheque amount inspite of service of notice. Taking into consideration the facts and circumstances, I find no illegality or irregularity in the conviction of the petitioner for the offence under Sec. 138 of Negotiable Instruments Act. 4. It is contended on behalf of the petitioner that the sentence of imprisonment of six months is very harsh taking into consideration the amount involved. On the other hand, the learned counsel for the respondent/complainant contended that the applicant had given undertaking to make payment of Rs. 3,38,000/- being the total amount of the two cheques, including the cheque in the present case before the trial Court, but had failed to make payment. He also pointed out that on 14.3.2011, the learned Counsel for the petitioner had, on instructions from the accused, made a statement before this Court that he would deposit total amount of Rs.3,38,000/-, being the principal amount of the two 4 CRA-361-10.sxw cheques, within 45 days and in case the amount is not deposited, revision application may be dismissed. Admittedly, even though period of 45 days has expired, the petitioner has not deposited any amount. As the said settlement was about the total amount of two cheques, I do not feel it appropriate to dismiss the Revision only because he had not deposited the total amount and therefore, I proceeded to hear the Revision Application on its own merits. 5. Fact remains that the petitioner had issued the cheque of Rs.30,000/-. After the cheque was dishonoured, he failed to make payment inspite of service of notice. Not only this, he gave an undertaking before the trial Court but he failed to make the payment. He also gave an undertaking before this Court, still he failed to make payment. It appears that he has deposited an amount of Rs.10,000/- on 15.4.2008 before the trial court. That amount was deposited as per the order of the Sessions Court, pending the appeal. The conduct of the petitioner indicates that he was not willing to make the payment and he also did not feel it necessary to comply with the undertakings given before the Court. In my opinion, the sentence of imprisonment of six months is harsh but taking into consideration the circumstances, the imprisonment of two months will meet the ends of justice. 6. In view of the above circumstances, Revision Application is partly 5 CRA-361-10.sxw allowed. While conviction of the petitioner for the offence under Sec. 138 of negotiable Instruments Act is maintained, the sentence awarded by the Courts below stands modified as follows:- The petitioner shall undergo simple imprisonment for two months and shall also pay amount of Rs.30,000/- as compensation to the complainant/respondent No.1. In case he fails to make payment, he shall undergo simple imprisonment for two months. The amount of Rs.10,000/- is already deposited. Balance amount of Rs.20,000/- be deposited before the trial Court within 3 weeks. 7 As the Revision Application itself is disposed of, Application No. 228/2010 does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)