REVN.47, 48-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No. 47 OF 2010 WITH CRIMINAL REVISION APPLICATION No. 48 OF 2010 M/s. Amrut Vishnu Nalawade ...Applicant Vs. The State of Maharashtra & Anr. ...Respondents *** Mr. Rajeshirke h/f D. V. Sutar, for the Applicant. Mr. P. S. Hingorani, APP for the Respondent-State. Mrs. Revati Mohite Dere for Respondent No.2. *** CORAM: V. M. KANADE J. DATE : OCTOBER 22, 2010 P.C. 1. Both the criminal revision applications are kept today after the parties had fully argued the matter, in order to ascertain whether the applicant is willing to deposit the amounts mentioned in the cheques. 2. The matters were initially kept on 21st October, 2010 after both the learned counsel appearing on behalf of the applicant and respondent No.2 were fully heard, only to give opportunity to the REVN.47, 48-10 - 2 - applicant/accused to deposit the entire amount which was due and payable to the complainant. However, yesterday neither the applicant nor his counsel remained present. Therefore, specifically the matters were kept today. Today also neither the applicant nor his advocate are present. However, advocate Rajeshirke holding for advocate D. V. Sutar initially requested that the matters may be kept on Monday and when his request was declined, he submitted that the matters may be kept back. It is not possible to adjourn the matters any further and that the applicant appears to be interested in just protracting the hearing to the next date. Hence, request is declined. 4. The applicant in both the revision applications is challenging the judgment and order dated 27th May, 2008 passed by the J.M.F.C., 10th Court Kolhapur, in Summary Criminal Case Nos. 255/2007 and 256/2007, whereby the applicant was convicted for the offence punishable under S. 138 of the Negotiable Instruments Act; and also the order passed by the Sessions Judge Kolhapurin Criminal Appeal Nos. 121 of 2008 and 125 of 2008 whereby the order passed by the learned Magistrate in the aforesaid two cases was confirmed. The respondent No.1 is a partnership firm and was carrying on the business of supplying tea. According to the complainant, tea was supplied to the REVN.47, 48-10 - 3 - applicant and towards the repayment of the said amount which was due and payable, two cheques were issued; one for an amount of Rs.5,26,546.36 Ps. and other for an amount of Rs.10,98,850.28 Ps. The demand notices were given and on non-payment of the said amounts within the stipulated period, two criminal complaints were filed. The trial Court convicted the applicant in both the cases and in the Summary Criminal Case No.255 of 2007 he was sentenced to suffer simple imprisonment for six months and to pay compensation of Rs.7 lacs to the complainant within one month, in default to suffer further S.I. for six months; and in Criminal Case No. 256 of 2007 the applicant/accused was convicted and sentenced to suffer S.I. for six months and to pay compensation of Rs. 13 lacs to the complainant within one month, in default to suffer further S.I. for six months. The Sessions Court dismissed both the appeals, preferred against the conviction and sentence in two cases awarded by the trial Court. In revisions conditional bail was granted by an order dated 22nd February, 2010 by this Court, directing the release of the applicant on bail in the sum of Rs.15,000/-, on depositing Rs. 2 lacs within a period of six weeks. However, it appears that the applicant did not deposit the said amounts, as directed by this Court. It was submitted by the learned counsel appearing on behalf of the REVN.47, 48-10 - 4 - applicant that M/s. Amrut Vishnu Nalawade is the proprietary firm and the disputed cheques were given by M/s. Amrut Vishnu Nalawade through its proprietor i.e. the applicant. It was therefore, submitted that the applicant was not entitled to pay any debt to respondent No.2 and it was submitted that in the examination-in- chief, respondent No.1 and her husband (PW 2) have stated that M/s. Amrut Vishnu Nalawade & Co. is a proprietary firm and present applicant Mr. Jaywant Arjun Nalawade is its proprietor. It is submitted that this statement is self-contradictory and on this ground alone, the complaint is not maintainable. 5. It was then contended that the complainant did not hold valid licence from the Kolhapur Municipal Corporation. It was also submitted that since it was a tea business, necessary licence from the Food Adulteration Department was required and in the absence of the licence, the entire business of respondent No. 2 was illegal and as such the transaction was also illegal and there was no legally enforceable debt or liability. Then it was submitted that M/s. Amrut Vishnu Nalawade & Co. is a partnership firm and therefore, all partners of said firm are required to be arraigned as party-accused in the complainant. 7. On the other hand, it was submitted by the learned counsel for the respondent that the cheque was issued by the applicant Jaywant REVN.47, 48-10 - 5 - Arjun Nalawade who was proprietor of M/s. Amrut Vishnu Nalawade. It was submitted that the accused did not dispute the signature on the cheques or his hand-writing on them. He also submitted that in the reply which was given to the notice, accused Jaywant Arjun Nalawade was shown as proprietor of the the firm and addresses of both the applicant and the firm is same. It was submitted that therefore, if the case of the accused is that M/s Amrut Vishnu Nalawade & Co. is a partnership firm, in the reply notice, he should have taken such a defense and should have stated who are partners of that firm. In my view, there is some substance in the submissions made by the learned counsel for the complainant. Both the Courts below have not accepted the contention of the applicant. Both the lower Courts have therefore, recorded finding of fact on this issue and it is not open for this Court now while exercising revisional jurisdiction to take a different view from the view taken by the lower courts. Even otherwise, in my view, both the Courts below are justified in holding the applicant guilty. 8. So far as the submission regarding complainant not having valid licence is concerned, the accused examined the Health Officer of the Kolhapur Municipal Corporation who gave his opinion that the complainant does not possess any licence within the Corporation area to REVN.47, 48-10 - 6 - run the business of tea and to have godown. The Sessions Court has observed that this defence witness has admitted that he had no authority from the Health Officer or Licencing Authority to depose on their behalf and that the opinion (Exh. 335) is not prepared by him. There is no merit in the submissions made by the learned counsel appearing for the applicant. No case is made out for interfering with the judgment and order of both the Courts below, while exercising revisional jurisdiction under S. 401 Cr.P.C. Both the criminal revision applications are therefore, dismissed. 9. The complainant is permitted to withdraw the amounts deposited by the accused in the trial Court. [ V. M. KANADE J.]