- 1 - 466 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.466 OF 2008 Mr.Arun Madhavdas Merchant .. Applicant vs State of Maharashtra & anr .. Respondents Ms.Rekha Singale for Applicant Mr.V.B.Konde-Deshmukh APP for Respondent- State Wife of Applicant present in court CORAM: N.D.DESHPANDE, J DATE: 28th March,2011 PER COURT 1. The present Criminal Revision Application is filed by the accused and the same is arising out of a complaint case registered under section 138 of the Negotiable Instrument Act. The applicant- accused was convicted by the trial court and said conviction was upheld by the learned appellate court in an appeal preferred by the applicant. Both orders of conviction - 2 - 466 have been impugned in this Criminal Revision Application. 2. Today, none appeared for the respondent- complainant. The applicant could not remain present since he had been operated recently and his wife is appearing on his behalf. She has instructions to make statement so also applicant s counsel is present. With the assistance of the learned counsel for the applicant and on instructions from the applicant s wife, I have gone through the Criminal Revision Application and certain interim orders passed therein passed by this court while granting ad interim stay. Thus, it is seen that the order of conviction and sentence of the applicant has been stayed. From the record, it is also seen that amount of Rs.75,000/- was initially paid by the applicant when he preferred an Appeal before the Sessions Court. During pendency of this - 3 - 466 Application, further payment was made to the tune of Rs.1,27,000/-. Thus, in total there is a deposit of Rs.2,02,000/- lying as deposit in court which was permitted to be withdrawn by the complainant-respondent. The relevant observation made by this court by order dated 21.1.2010 is reproduced as under : The complainant who has appeared before me states through his advocate that he has not withdrawn the amount deposited If he has not withdrawn the amount deposited in this court and Sessions Court, he is at liberty to do so on production of an authenticated copy of this order. Now, on instructions it is informed that the complainant has withdrawn the amount. 3. Perused the impugned order of conviction. The total compensation directed to be paid is Rs.2,22,500/- out of which Rs. 2,02,000/- has been paid. The cheque amount - 4 - 466 is Rs.1,54,000/-. The applicant s wife stated that the entire compensation amount of Rs.2,25,000/- impugned in the criminal Revision application cannot be deposited since the applicant has recently undergone leg surgery and he has no money to pay. However, the applicant has no objection to dispose of the Criminal Revision Application in case whatever amount deposited by him is adjusted for payment to the respondent- complainant. 4. Whereas the case was called out for admission, and it has passed through various stages of hearing, in my opinion, there is no point to keep the Criminal Revision application pending in the light of above stated facts. 5. It seems that the complainant-respondent is not interested to proceed further in the - 5 - 466 matter and remained absent today. An offence under section 138 of the Negotiable Instrument Act and other offences under the Act are compoundable under section 147 of the Act but, is not found at whose instance such offences would be compoundable. Under the Code of Criminal Procedure, 1973, there is a table listing the offences which are compoundable, without permission of the court and offences with permission of the court and also persons by whom offences may be compounded. 6. The offence under section 138 of the Negotiable Instrument Act is defined and it is found that the account is insufficient to honour a cheque or which exceeds the amount that arranged to be made from that account of an agreement with that bank, and such persons shall be deemed to have committed an offence and shall be imprisoned for a period - 6 - 466 of two years or which may extend to twice the amount of the cheque or with both. Thus, the offence under section 138 is a deemed offence and not a regular offence punishable under the penal law or IPC. The punishment may extend to a term of two years or with fine of twice the amount of the cheque or with both. In business community, everyone has to see that the cheque is not dishonoured but, honoured and whosoever fails in it is mainly liable for penalty by fine compensation or punishment. 7. After going through the record and proceedings of the impugned judgment, it is seen that the parties were known to each other who are occupants of the same building. According to the complainant, the applicant has purchased certain goods. - 7 - 466 8. In the facts and circumstances of the case, following order would meet the ends of justice: (i) The applicant having deposited Rs. 2.04,000/- in total in these proceedings and the complainant-respondent having received the same, the Criminal Revision Application is allowed. (ii) The impugned judgment and order of conviction under section 138 of the Negotiable Instrument Act of both trial court and the appellate court is quashed and set aside and the applicant is acquitted for the charge under section 138 of the Act. The grievance of the original complainant stands satisfied for the total claim of Rs.2,04,000/- for the bounced cheque of Rs.1,54,000/-. The fine amount of - 8 - 466 Rs.10,000/- deposited by the applicant in the trial court shall be returned to the applicant-accused forthwith. Criminal Revision Application is accordingly allowed and disposed of. (N.D.Deshpande,J)