Ndm 1 appr.420.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL MISC. APPLICATION NO. 420 OF 2009 IN CRIMINAL REVISION APPLICATION NO. 512 OF 2009 IN C.C. NO. 270 / S / 02 Mrs. Madhu Ramesh Vithlani. ... APPLICANT Vs. Nirmal Kumar Jain Gundecha and anr. ... RESPONDENTS -------------- Mr. M.S. Prasad, Advocate for Applicant. Mr. Prashant H. Chande for Respondent No.1. Mr. S.A. Shaikh, APP for State. -------------- CORAM : MRS. MRIDULA BHATKAR, J. DATE : 10 th September, 2009. P.C. 1 The learned counsel for the Respondent is present. 2 This application for condonation of delay of 21 days is filed. It is submitted that the reason for the delay is given that on hearing the order, the applicant could not gain confidence to approach the Honourable High Court as Ndm 2 appr.420.09.sxw he was totally demoralized. Hence there is a delay and be condonded. 3 Delay condoned. 4 The Revision Application is filed by the Applicant-Accused challenging the order passed by Metropolitan Magistrate 21 st Court, Bandra, Mumbai. The amount of compensation of Rs.11,25,000/-, which was granted under Section 357 (3) of Criminal Procedure Code by the judgment and order dated 09 th April, 2009 passed by Metropolitan Magistrate 21 Court, Bandra, Mumbai. The said summary case was tried by the Metropolitan Magistrate, Court, Mumbai as per the directions given by the Sessions Court dated 26 th December, 2008 by which the matter was remanded to the Metropolitan Magistrate Court, Mumbai for imposing sentence of fine on accused No.2 or for awarding appropriate compensation after hearing both the sides. It is curious to note, that this order of remanding the matter was passed by the learned Sessions Judge while deciding the appeal of conviction by which the Applicant- Accused convicted by its judgment and order dated 07.03.2006 for the offence punishable under Section 138 of the Negotiable Instruments Act for SI for one year and pay fine of Rs.5,000/-, in default SI for three months. This order of conviction was confirmed in the appeal and appeal was dismissed. Ndm 3 appr.420.09.sxw Simultaneously, a Revision for enhancement of the sentence was filed by the original Complainant against, accused was also heard and the said Revision was allowed. In the present Revision Application, the Applicant-Accused had challenged only order of enhancement of fine, which was passed by the learned Metropolitan Magistrate Court, Mumbai on 09.04.2009. It appears that the original Accused has not challenged the concurrent findings of the conviction and the judgment of the learned Sessions Judge. While dismissing the Appeal, learned Sessions Judge has directed both the parties to appear before the learned Metropolitan Magistrate 21 st Court, Bandra, Mumbai. Thereafter, pursuant to the said order, the Applicant-Accused to appear before the learned Metropolitan Magistrate Court, Bandra, Mumbai. However, since 26.12.2008, since the appeal was dismissed, Applicant – Accused was not taken in custody to that effect the learned Court ought to have passed specific order and after surrendering and the Applicant-Accused before the JMFC Court should have been taken in custody in the absence of any Revision Application or any order of bail from the High Court. 5 The Accused is directed to surrender before the learned Metropolitan Magistrate 21 st Court, Bandara, Mumbai tomorrow in compliance Ndm 4 appr.420.09.sxw of the order as the appeal is dismissed in default. 6 The learned counsel for both the sides expressed their willingness and desire to settle the matter after obtaining instructions from their respective clients, the matter fixed on Monday i.e. to 14 th September, 2009. [ MRS. MRIDULA BHATKAR, J ]