1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR Criminal Revision No. 43/2009 Bhagwan Rambhau Khadse, aged about 53 years, Occ. Tailoring business, r/o behind Pitashree Building, RaviNagar, Near Sudhir Colony, Akola, Tq. Dist. Akola .. APPLICANT .. Versus .. 1. State of Maharashtra, thr. Police Station Officer, Civil Lines, Akola 2. Smt. Shalinibai w/o Narayan Narkhede, aged about 79 years, r/o Khedkar Nagar, Adjacent to Bajrangbali Temple, near Auto shop, Sudhir Colony, Akola, Tq.Dist. Akola. .. NON APPLICANTS ------------------------------------------------------------------------------------ Mr. S. G. Joshi, Advocate for applicant. Ms. T. D. Khade, A.P.P. for non applicant no.1 None for non applicant no.2. ------------------------------------------------------------------------------------ CORAM : R. Y. GANOO, J. DATED : 26 th August, 2009 P. C. 1. Applicant has been convicted under Section 138 of the Negotiable Instruments Act in Summary Criminal Case No. 7762/2002 in the Court of learned Judicial Magistrate First Class, Court No. 8, Akola (hereinafter referred to as learned ‘Trial Judge’). The punishment imposed was simple imprisonment for three months and 2 fine of Rs. 2000/- in default, the applicant was to undergo simple imprisonment for two months. In addition to that compensation of Rs. 1,30,000/- was ordered to be paid. Against this order, the applicant had filed Criminal Appeal No. 15/2007 before the learned Sessions Judge, Akola. That appeal was dismissed by order dated 21.01.2009 so far as order of conviction is concerned and the sentence was modified and applicant was ordered to pay a fine of Rs. 1,30,000/- within four weeks from the date of order and non payment of the said fine was to result in the applicant undergoing simple imprisonment for three months. Both these orders are challenged before this Court by way of present revision. 2. I have heard learned Advocate Mr. Joshi extensively. The complainant has filed the said complaint on account of dishonour of three cheques totaling to Rs. 65,000/-. The applicant conducted cross-examination of the complainant and did not step into witness box. The applicant did not examine any witness. It was the stand of applicant before learned trial Judge that the applicant had borrowed loan from son of complainant, to the tune of Rs. 3 65,000/- and had delivered three cheques towards security and subsequently the said amount which was borrowed was repaid. On the cheques there has been alteration of dates with purported signatures of the applicant. In substance, the applicant denied the entire transaction qua the complainant, put up his defence by asking questions in cross-examination. 3. Learned Advocate for the applicant could not place before this Court any admission on the part of the complainant which can show that the applicant’s defence was accepted by the complainant. If the case put up by the applicant through the complainant came to be denied, in order to discharge burden as regards various points, it was necessary for the applicant to step into the witness box as also examine some other person as may be found necessary. The applicant did not do so. Both the courts have considered the evidence in proper perspective and rightly rejected the stand of the applicant on all counts. In my view, no interference is required in the impugned judgment on merits of the matter. 4 4. If at all the applicant had borrowed loan from the son of the complainant and had repaid the said amount, in the normal course, the applicant could have produced some document acknowledging the receipt of the said amount. Nothing in that behalf has been done. No notice was issued to the son calling upon him the return those three cheques after so called payment was made. The signature on the cheque is admitted by the applicant. He claims that he had given blank cheques by way of security. If the moneys were to be repaid, it is difficult to understand as to how three blank cheques duly signed came to be given by way of security and for which transaction. If at all the applicant wanted to repay money at later point of time, he could have issued one single cheque covering the said amount. According to the applicant, the date came to be altered and signature is found near the said altered date. It was sought to be pressed as an material alteration as understood in section 87 of the Negotiable Instruments Act. If it was the case of the applicant that signature near the date was not put by the applicant, he could have stepped into witness box and if found necessary would have asked for opinion of hand-writing expert to show that the signature does not 5 pertain to him. However, the applicant did not do anything except asking some questions in the cross-examination. So far as the quantum of sentence is concerned, in my view, the learned Sessions Judge has shown leniency and set aside the punishment of imprisonment which was for a period of three moths and in lieu that ordered to pay compensation of Rs. 1,30,000/- and further ordered that non payment of compensation will require the applicant to undergo simple imprisonment of three months. In my view, the learned Sessions Judge has taken lenient attitude by setting aside the punishment of imprisonment and enhancing the compensation amount to see that the applicant is not required to undergo jail term. It is noticed that the cheques came to be dishonoured some time in November-2001. The impugned order directing compensation is of January-2009 i.e. a period of practically 6 years has elapsed. Today, we are in August-2009 i.e. a period of seven years will elapse very shortly. The complainant is deprived of a sum of Rs. 78,000/- and odd since year 2000. The total amount of compensation takes care of the principal amount and that amount will have to be treated as something in the nature of interest which the 6 complainant would have got if the said amount would have been repaid to her at an appropriate time. In my view, no interference is required in the impugned order. For the aforesaid reasons the revision application is required to be dismissed. The applicant was directed to deposit a sum of Rs. 65,000/- before the trial Court as part of condition for entertaining the present revision application. 5. For the aforesaid reasons, I pass the following order. The application is dismissed. Amount of Rs. 65,000/- deposited by applicant with the trial Court be paid over to non applicant no.2-original complainant without security or guarantee as part of fulfillment of order passed by learned Sessions Judge, Akola. JUDGE kahale