1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION NO.1094/2010 (Uttamchand Ratanchand Zambad .vrs. Sunil Fulchand Bharuch and one) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders .......... CORAM : R.G. KETKAR, J. DATED : OCTOBER 04, 2010 Heard Shri S.C. Bhalerao, learned counsel for the applicant/accused, Shri Anil S. Mardikar, learned counsel for respondent no.1 and Shri N.R. Rode, learned APP for respondent no.2/State. The applicant challenges the order dated 23.6.2010 passed by the learned Ad-hoc Additional Sessions Judge, Yavatmal below Exh.31 as also the order dated 4.4.2007 passed by the learned Additional Sessions Judge, Yavatmal below Exh.18 in Criminal Appeal No.36/2005. By these orders, the learned Sessions Judge rejected the applications moved by the applicant herein for permission to deposit of Rs.70,000/-. The applicant was prosecuted for offence punishable under Section 138, Negotiable Instruments Act, 1881 (for short ‘Act’) on account of dishonour of cheque in the sum of Rs. 1,50,000/-. 2 By the judgment and order dated 16.7.2005 the learned magistrate convicted the applicant for the offence punishable under section 138 of the Act and sentenced him to suffer simple imprisonment for 6 months and to pay compensation of Rs.1,50,000/-. The applicant preferred Criminal Appeal No. 36/2005 before the Court of Session, Yavatmal on 3.8.2005. The applicant was enlarged on bail subject to the condition of depositing of Rs.80,000/-. It is not in dispute that the applicant has deposited amount of Rs. 80,000/- in the Sessions Court at Yavatmal. The applicant thereafter took out application at Exh.18 in the pending appeal on 11.12.2006 for depositing the remaining amount of compensation. That was rejected by the impugned order dated 4.4.2007. Subsequently the applicant filed application Exh.31 on 16.10.2008 which was also rejected by the impugned order dated 23.6.2010. Against those two orders, the applicant has preferred this application. Shri Bhalerao, learned counsel for the applicant, submitted that even while passing order on 16.7.2005 and in paragraph 15, the learned magistrate recorded the submission made on behalf of the applicant that the applicant/accused is ready to pay the cheque amount on that day itself. Despite that he was convicted and when the applicant preferred appeal, he was enlarged on bail subject to the condition of depositing Rs.80,000/- in the Sessions Court which he 3 has complied with. He, therefore, filed the application on 11.12.2006 at Exh.18 which ought to have been allowed by the learned Sessions Judge. The learned Sessions Judge rejected the application without assigning any reason. Even thereafter the applicant took out application Exh.31 on 16.10.2008, which was also rejected on 23.6.2010. Shri Bhalerao relied upon the judgment of this court in the case of William Rosario Fernandes .vrs. Chander Mohan Mehta s/o Late E.S. Mehta, 2008 (5) Mh.L.J. 435. On the other hand, Shri Mardikar, learned counsel for respondent no.1, submitted that Criminal Appeal No.36/2005 is ripe for final hearing. The application at Exh.18 was initially rejected on 4.4.2007 by the learned Additional Sessions Judge, Yavatmal. The said order was, however, not challenged by the applicant. The applicant, thereafter, filed another application on 16.10.2008, which was rejected on 23.6.2010. He submitted that having regard to Section 386 (b) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.), the appellate court has power to reverse the finding and sentence and acquit or discharge the accused or with or without altering the finding, alter the nature or the extent of the sentence, but not so as to enhance the same. The contentions which are advanced by the applicant in the present application could be advanced by him before the learned Sessions Judge and no interference is called for. 4 Having considered the submissions made by the learned counsel for the parties and having regard to the provision of Section 386, Cr.P.C. in my opinion, interest of justice would be served by reserving the liberty to the applicant to agitate this issue before the learned Sessions Judge, who is seized of the appeal. The appeal is also ripe for hearing. In view of this, the application is disposed of in the following terms : (i) The applicant is at liberty to agitate issues raised in the present application before the learned Sessions Judge in Criminal Appeal No.36/2005 which is pending for final hearing and disposal. (ii) The learned Sessions Judge shall consider the contentions of the applicant without being influenced by the impugned orders dated 4.4.2007 and 23.6.2010. (iii) While considering the submissions of the applicant, the learned Sessions Judge shall have due regard to the fact that the applicant is aged about 71 years old and also will take into account the judgment of this Court in William’s case (supra). (iv) The parties shall appear before the learned Sessions Judge on 18th October, 2010. The learned Sessions Judge shall thereafter give suitable date for final disposal of the appeal. The parties shall cooperate for final disposal of the Criminal Appeal No.36/2005. The application stands disposed of in aforesaid terms. JUDGE Gulande