1 REVN451/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.451 OF 2010 Shri Anil Madhavrao Walzade ..... Applicant. v/s The Nasik Cooperative Credit & Capital Ltd. ...... Respondents. Mr. Rameshwar N. Gite for the Applicant. Mrs. V.R. Bhonsale, APP for the State. CORAM: V. M. KANADE, J. DATE : 21st October, 2010 P.C.:- 1. Heard the learned Counsel for the applicant. 2. Applicant is challenging the order passed by the learned J.M.F.C. Nashik in Criminal Case No.8311 of 2003 whereby the applicant herein was convicted for the offence punishable under section 138 of the Negotiable Instruments Act and he is sentenced to suffer simple imprisonment for three years and to pay fine of Rs 2000/- and in default to suffer simple imprisonment for one more month. Against this order, applicant herein preferred an appeal in the Sessions Court at Nashik vide Criminal Appeal No.38 of 2007, which appeal was partly allowed. The conviction was 2 REVN451/10 confirmed. He was however sentenced to suffer simple imprisonment for three months. Against this order, applicant has filed this Criminal Revision Application. 3. Brief facts are as under:- 4. Respondent No.1 – Nasik Cooperative Credit & Capital Ltd. filed a complaint in the Court of Metropolitan Magistrate under section 138 of the Negotiable Instruments Act, in which it was alleged that the applicant had taken a personal loan for a sum of Rs 4 lakhs and it wad disbursed to him on 18/8/2001. However, the said amount was not repaid and, for the purpose of repaying the said amount with interest, a cheque for an amount of Rs 5,70,567/- was given by the applicant to Respondent No.1. The said cheque, when it was deposited, came to be dishonoured. A statutory demand notice was sent to the applicant and on non-payment of the said amount, a complaint was filed. The Trial Court, on the basis of evidence adduced by the complainant, convicted the applicant, which order has been confirmed by the Sessions Court. 5. Mr. Gite, the learned Counsel appearing on behalf of the applicant firstly submitted that the complainant had filed its case only against the applicant though the said amount of loan was given to him as a partner of the partnership firm. He submitted that in all fairness the complainant should have prosecuted other partners also and since they were not 3 REVN451/10 made as accused, applicant could not be prosecuted for dishonour of the cheque. This submission has to be only stated before it is rejected. 6. In the present case, it is an admitted position that the applicant was a signatory of the said cheque and the said cheque was dishonoured. The complainant, therefore, has discretion either to prosecute the signatory of the cheque alone or the company if other partners had played role in obtaining loan. They can also be added as accused, provided other requirements mentioned in section 141 are complied with. In the present case, Respondent No.1 in the complaint has specifically alleged that the loan was taken by the applicant in his personal capacity. Therefore, question of making other partners as accused does not arise. Then it is submitted that affidavit in lieu of evidence filed by the complainant was not affirmed in accordance with law and, therefore, the said evidence ought not to have been considered by the Trial Court and the Appellate Court. In support of the said submission, reliance has been placed on the Division Bench Judgment of this Court in Sardar Surjeet Singh and others vs. State of Maharashtra and others1. There is no substance in the said submission. Firstly, no objection has been raised by the applicant in the Trial Court when this evidence was taken on record. Secondly, there is no cross-examination on this point. Therefore, it is not open now for the applicant to raise this objection at this stage. It 1 2006(1) Mh.L.J. 538 4 REVN451/10 is a settled position in law that defect in verification is a curable defect and had the applicant raised this objection, the Respondent No.1 could have responded to the said objection or could have cured it. Applicant, therefore, not having raised the objection in the trial court, cannot now be permitted to raise this objection at this stage. Under these circumstances, there is no merit in the submissions made by the learned Counsel appearing on behalf the applicant. 7. It is pertinent to note that no order has been passed by the lower court, directing the applicant to pay the compensation on account of dishonour of the cheque. This Court had asked the learned Counsel appearing on behalf of the applicant to find out whether the applicant is willing to deposit any amount in this Court. However, to day, I am informed that the applicant is not willing to deposit any amount in this Court. 8. For the aforesaid reasons, Criminal Revision Application is dismissed. (V.M. KANADE, J.) 5 REVN451/10