1 Criminal Appl.No.4005 of 2011 in Criminal Revision Appl.No.251 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4005 OF 2011 IN CRIMINAL REVISION APPLICATION NO.251 OF 2010 Gajendra Laxminarayan Oza, Age-37 years, Occu-Business, R/o.Swami Vivekanand Nagar, Jilha Peth, Jalgaon, Tq. And Dist. Jalgaon APPLICANT VERSUS Sharad Vithal Patil, Age-52 years, Occu-Service, R/o.Khadka Road, Lal Building, Bhusawal, Tq.Bhusawal, Dist.Jalgaon RESPONDENT Mr.P.N.Kutti, learned counsel for the applicant. Mr.B.R.Kedar, learned counsel for respondent. (CORAM : A.V.POTDAR, J.) DATE : 22/09/2011 PER COURT : 1. Heard learned counsel for applicant. Issue notice to respondent. Learned counsel Shri.Kedar accepts notice for respondent. 2. By the present application, the applicant/original complainant, who is respondent in Cri.Rev.No.251/2010, has approached this Court with a prayer that he may be permitted to withdraw the 2 Criminal Appl.No.4005 of 2011 in Criminal Revision Appl.No.251 of 2010 amount in the sum of Rs.50,000/- alongwith interest, which was deposited by the revision applicant in the Court of J.M.F.C. Jalgaon. 3. It appears that the applicant in this application has lodged complaint bearing RCC No.152/2002 u/s. 138 of the N.I.Act against the respondent herein before learned J.M.F.C. Jalgaon. It appears that 5th Jt.J.M.F.C. Jalgaon, vide his order dated 26/09/2005, convicted the respondent herein for an offence punishable u/s. 138 of the N.I.Act and sentenced to suffer SI for 50 days and to pay fine in the sum of Rs.2,000/- with default stipulation to undergo SI for 30 days. In addition to this, the respondent to this application was also directed to pay compensation in the sum of Rs.1,00,000/- to the complainant under the provisions of section 357(3) of the Cr.P.C. It appears that the respondent herein further challenged the correctness of his conviction and sentenced by way of Criminal Appeal No.146/2005 which came to be dismissed by the Additional Sessions Judge, Jalgaon vide his judgment and order dated 20/09/2010. Cri.Revision Application No.251/2010 is preferred by the original accused, questioning the correctness and legality of his conviction and sentence awarded by both the Courts below, mainly on the ground that even if the original accused was held guilty for an offence punishable u/s. 138 of the N.I.Act, whether the Court can award sentence of fine and can direct him to pay compensation to the original complainant. Keeping this issue open at the time of hearing, 3 Criminal Appl.No.4005 of 2011 in Criminal Revision Appl.No.251 of 2010 this application required to be considered as there is con-current findings of both the Courts below that original accused is found guilty for an offence punishable u/s. 138 of the N.I.Act. The amount of the cheque bounced was in the sum of Rs.2,00,000/-. As per the directions of the First Appellate Court, an amount of Rs.50,000/- is deposited before the Lower Court. Due to pendancy of this revision application, even though the application was moved before the Court below for withdrawal of that amount, that application was appeared to be not entertained by both the courts below. Considering the amount of cheque bounced, which is in the sum of Rs.2,00,000/- and the amount deposited is in the sum of Rs.50,000/-, it is meagre to the amount of the cheque bounced. Considering the difficulty that the original complainant is facing blockage to withdraw his own amount, this application needs to be allowed on certain conditions. In the result, application deserves to be allowed. Application is allowed in terms of prayer clause ‘A’. The applicant is entitled to withdraw the amount in the sum of Rs.50,000/- (without interest if not invested anywhere and with interest, if invested anywhere) on furnishing his undertaking before the Lower Court that he is withdrawing the amount subject to the result of Criminal Revision Application no.251/2010. (A.V.POTDAR, J.) khs/SEPT.2011/cri.appl.4005-11