1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 160 OF 2009 Vilas Bharat Dhamne .. Applicant Vs. Harawati Jayaram Pant Lagad & Anr. .. Respondents Mr. Anilkumar Patil for the Applicant. Mr. S. K. Shinde for Respondent No.1 Mrs. A. A. Mane APP for the Respondent State. CORAM : MRS. R. S. DALVI, J. DATE : 15th December, 2009. P.C. 1. This application challenged the order of the learned Magistrate as well as the learned Sessions Court in a criminal complaint filed under Section 138 of the Negotiable Instruments Act upon dishonour of a cheque issued by respondent No.1 to the applicant herein. The conviction ordered by the learned Judicial Magistrate First Class, Nasik on 13th September, 2007 has been confirmed in appeal by the Sessions Judge, Nasik on 20.03.2009. 2. The flat of the applicant was sought to be sold to respondent No.1. There is dispute in the total price of the flat 2 agreed to be sold between the parties. It is the case of respondent No.1 Rs.3,82,000/- was the sale price and it is the case of respondent No.2 that Rs.5,82,000/- was the sale price. The applicant’s case is based upon the consideration amount paid in installments from time to time and another plot of land valued at Rs.2 lakhs which was to sold by applicant to respondent No.1. 3. Admittedly the amount paid to the parties by installments aggregates to Rs.3,83,000/-. Rs.1 Lakh is paid on 06.04.2003, another Rs.1 Lakh paid on 08.04.2004, Rs.1.50 Lakh paid on 10.06.2004 and Rs.32,000/- are paid on 13.06.2005 completing the installments payable for the flat to be sold. Possession of the flat came to be given by the applicant to respondent No.1 on 14.04.2004 after a part payment of Rs.2 Lakhs was received. The possession continues with respondent No.1. 4. It is her case that the flat has certain defects in construction. The defects are not remedied. She offered to return the possession of the flat if the consideration paid by her was returned to her. That consideration has not been returned. A cheque came to be issued instead. That cheque was for return of 3 consideration. Issue of cheque is admitted. Hence the statutory presumption of the payment of consideration has to be drawn. The amount involved in the cheque that has to be returned. That amount is not returned. Hence, the complaint. 5. The issue of the cheque well after possession was given and about 9 months after the last part payment was made shows that the reasons for insisting upon the return of the amount is admitted. Consequently the case of respondent No.1 that she was given possession back to the applicant if the applicant returned to her the amount as promised reflected in the dishonour cheque is a bonafide offer. The cheque amount is not paid and it has stood dishonoured. The presumption is not rebutted because the applicant has not shown that the defects in the flat are remedied or that the case of the defects in the flat is false. Hence, the amount under the dishonoured cheque would have to be paid and the dishonour would entail criminal liability. 6. Two concurrent judgments of facts are therefore correct. The order of conviction cannot be set aside unless the amount of the cheque is repaid. Criminal application must 4 therefore be dismissed subject only to the payment of the compensation amount granted. 7. If the applicant does not repay the compensation amount of Rs.4 lakhs to respondent No.1 within 4 weeks, the applicant shall be taken in custody. If the amount of compensation is paid within 4 weeks the conviction of the two Courts below shall be set aside. 8. Credit for amount already deposited in the trial Court shall be given at the time of payment. 9. The Advocate for the applicant states that Rs.2 lakhs are deposited in the trial Court. Respondent No.1 shall be entitled to withdraw Rs. 2 lakhs forthwith. The applicant’s further liability shall be to the extent of Rs. 2 lakhs. (R. S. DALVI, J.)