1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REV APPLICATION NO.269/2007 WITH CRIMINAL APPLICATION NO.1317/2011 DHONDIBA NAGOBA LADKE Applicant VERSUS THE STATE OF MAHARASHTRA AND ANR ..Respondent ... Advocate for applicant. : Mr. Garud V.B. APP for Respondent(s): Mr. B.V.Wagh For R-1. Mr. S. S Shinde Adv For Respd No.2 ... CORAM : SHRIHARI P. DAVARE, J. DATE : 7 th JULY, 2011. ORAL JUDGMENT : 1. Heard learned counsel for the parties. 2. Rule. Rule made returnable forthwith. With the consent of the parties, taken up for final hearing. 3. At the outset, revisional applicant/original accused has preferred revision application challenging the legality and correctness of the conviction and sentence imposed upon him by way judgment and order 2 rendered by learned Judicial Magistrate First Class, Parbhani in Regular Criminal Case No.642/2003, thereby convicting him for the offence punishable under section 138 of Negotiable Instruments Act and sentencing him to suffer Simple Imprisonment for one month and to pay fine of Rs.1,000/- (Rs. One thousand) in default of payment of fine amount to suffer further S.I. for 15 days and also assailing the legality and correctness of judgment and order rendered by learned Sessions Judge, Parbhani in Criminal Appeal No.24/2006, thereby dismissing the said appeal filed by the applicant herein and confirming the conviction and sentence inflicted upon the applicant by way of judgment and order dated 30.10.2007. 4. The respondent/original complainant is a bank which had given loan of Rs.81,000/- to the applicant/original accused to start poultry farm in the year 1991. The applicant herein and his partner namely Balwantrao Deshmukh mortgaged their respective lands bearing gat nos 196, 195 in favour of the complainant for the said land. Accused was the active partner. The said loan was agreed to be repaid in six installments at the rate of Rs.14% p.a. however, applicant herein failed to repay said loan 3 amount. 5. It is further alleged that on persistent demand of the complainant, accused issued cheque of Rs.1,20,000/- in favour of the complainant on 15.5.1999. Meanwhile, on 18.5.1999 he undertook to realize the amount by selling his house within one month. Hence, after waiting for one month, the complainant presented said cheque for encashment purpose. However, same was dishonored and returned unpaid with bank return memo having endorsement 'due to insufficiency of funds’ in the account of the applicant’ herein. Hence, complainant issued demand notice on 28.6.1999 to the accused and called upon him to make payment of said cheque however, accused refused to accept said notice on 29.6.1999. Accordingly, accused failed to make the payment of said cheque as per demand notice hence complaint was filed against accused under section 138 of Negotiable Instruments Act. Process came to be issued against accused and accused appeared therein. 6. The complainant adduced oral as well as produced documentary evidence to substantiate its contention and accordingly examined Manager namely Vishvambhar Ravale Exh.64 as PW 1 and also 4 examined Bhanudas Kadam branch Manager of P.D.C.C.bank Parbhani, as well as produced documentary evidence such as disputed cheque in question at Exh.65, cheque return memo at Exh.83 and 84, demand notice dated 28.6.1999 Exh.67, postal receipt thereof Exh.68, unserved envelope Exh.67 and statement of the account of the accused Exh.69. In rebuttal accused examined his son namely Ramakant Ladke at Exh.88 and DW 2 Bapurao Ghumbre at Exh.89 and produced letter dated 17.9.1999 issued by Ramprasad at Exh.80, pass book of accused at Exh.86, letter dated 5.3.1998 issued by the Assistant Registrar, Cooperative Societies at Exh.78 and demand notices issued by the complainant to accused at Exh.79 and Exh.80. 7. Considering the oral as well as documentary and also considering the rival submissions advanced by the learned counsel for the parties, learned trial court held the accused guilty under section 138 of Negotiable Instruments Act and convicted him therefor and sentenced him to suffer S.I. for one month and directed to pay fine of Rs.1,000/- in default to suffer further S.I. for 15 days by way of judgment and order dated as aforesaid. 5 8. Being aggrieved and dis-satisfied by the said judgment and order of conviction, applicant/original accused preferred Criminal appeal No.24/2006 before learned Sessions Judge, Parbhani and thereby questioned the conviction and sentence inflicted upon him. However, after considering rival submissions learned Sessions Judge also dismissed said appeal filed by the applicant by judgment and order dated 30.10.2007 and thereby confirmed conviction and sentence imposed upon the applicant by the learned trial court. Hence, feeling aggrieved and dis-satisfied by the judgment and order of dismissal of criminal appeal, applicant has preferred criminal revision application assailing the correctness and legality of the judgment and order of conviction rendered by trial court and dismissal of the appeal by the First Appellate court and prayed for quashment thereof. 9. Pending hearing and final disposal of the said criminal revision application, applicant/original accused preferred criminal application No.1317/2011 therein and submits that transaction in question pertains to loan transaction between the applicant and respondent bank but during the pendency of criminal revision application, amicable settlement has taken place between the applicant and respondent No.2- 6 bank out of court and matter is settled between the parties i.e. applicant and respondent No.2 bank under One Time Settlement (OTS) scheme implemented by the respondent No.2 bank for defaulter borrowers and applicant availed benefit of said scheme for which applicant has deposited entire amount under the OTS Scheme and respondent No.2 bank has accepted the settlement amount from the applicant and issued the receipts dated 5.2.2011 and 28.2.2011 in favour of the applicant towards full and final settlement of the dues. Accordingly, applicant also submits that after deposit of the settlement amount under the OTS scheme, on 28.2.2011 the respondent No.2 bank has issued the ‘No Dues Certificate’ in favour of the applicant in respect of the loan account No.55/2007 and also issued letter in favour of applicant’s advocate for closing of the present case which is annexed along with the application. 10. The applicant further submits that, fine amount has already been deposited before the trial court and there is endorsement dated 24.4.2006 to that effect on the copy of judgment of learned trial court. In the light of the said facts applicant submits that, since, matter is amicably settled between the parties i.e. applicant and respondent No.2- bank, and 7 respondent No.2-bank has no objection and grievance against the applicant and there is no propriety in keeping the matter pending before this court and hence submitted that applicant and respondent No.2 be allowed to compound the offence punishable under section 138 of Negotiable Instruments Act invoking the provisions under section 147 of the said Act and further submitted that the impugned judgment and order dated 24.4.2006 passed by learned Judicial Magistrate First Class, Parbhani and confirmed the same by judgment and order dated 30.10.2007 rendered by leaned Sessions Judge, Parbhani be quashed and set aside and applicant be acquitted for the offence punishable under section 138 of Negotiable Instruments Act. 11. Learned counsel for the applicant relied upon judicial pronouncement of the Apex Court in the case of Anil Kumar Haritwal and another V.s Alka Gupta and another reported at 2005 (123) COMPANY CASES (S.C.) 258 . Offence under section 138 of Negotiable Instruments, Act is a compoundable offence and parties have right to compound the offence. 12. Considering the said legal position and also considering the 8 factual aspects in the present case that the applicant has repaid entire dues to the respondent no.2-Bank and the respondent No.2 complainant- bank has also issued ‘No Dues Certificate’ to the applicant’s advocate and since the copies of receipts of payment and the copy of those certificates are annexed to the application preferred by the applicant herein and since matter has been settled between the parties out of the court amicably, permission to the parties is required to be granted to compound the offence under section 138 of Negotiable Instruments Act invoking the provisions of section 147 of Negotiable Instruments Act since there is no propriety in keeping the present criminal Revision Application pending. Consequently, applicant/original accused deserves to be acquitted for the offence with which he was charged and convicted allowing the present Criminal Revision Application No.269/2007 as well as Criminal Application No.1317/2011. 13. In the result, Criminal Revision Application No. 269 of 2007 and Criminal Application No. 1317 of 2011 are allowed and the offence in R.C.C. No. 642 of 2003 under Section 138 of the Negotiable Instruments Act stands compounded invoking the provision of Section 147 of the 9 Negotiable Instruments Act and the conviction and sentence imposed upon the applicant in R.C.C.No. 642 of 2003 by judgment and order, dated 24.4.2006, awarded by the learned Judicial Magistrate, First Class, Parbhani, and confirmed by learned Sessions Judge, Parbhani in Criminal Appeal No. 24 of 2006 by judgment and order, dated 30.10.2007, thereby dismissing the said appeal, stands quashed and set aside and the applicant herein stands acquitted therefrom and the fine amount, if any, deposited by him be refunded to him, subject to payment of compounding charges, if any, to be paid by the respondent/accused in the court. 14. Rule is made absolute accordingly. [ SHRIHARI P. DAVARE ] JUDGE ... AAA/269.07