1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 436 OF 2009 Vijay Omprakash Khatodiya ... Applicant Vs. The State of Maharashtra & ors. ... Respondents Mr. S.V. Marwadi i/b Mr. Jayant Bardeskar for the applicant. Mr. K.K. Sosavade i/b Mr. P.M. Arjunwadkar for respondent No.2. Ms. S.V. Gajare APP for respondent State. CORAM : MRS. MRIDULA BHATKAR, J. Dated :- 18th September, 2009. PC : 01. This Criminal Revision application is filed against the order 14.07.2009 of conviction passed by the Sessions Judge, Kolhapur thereby dismissing the Criminal Appeal filed by the applicant accused. Thus, this is appeal against the concurrent findings of the conviction for the offence punishable under Section 138 of the Negotiable Instruments Act. Learned counsel appearing for the applicant-accused has submitted that the trial court and the Sessions Court 2 have committed an error in holding the accused guilty for the offence as the complainant has not proved that it is legally dischargeable debt. He has submitted that the cheque was issued on behalf of the partnership firm. The firm was not made an accused. On this point he relied on the judgment laid down in the case of “Anil Hada Vs. Indian Acrylic Ltd. reported in (2000) 1 Supreme Court Cases 1” . He has further submitted that the accused has rebutted the presumption by tendering the evidence that the applicant is having the shares of the accused and so the some loan is already paid. However, it is not considered by the Sessions Judge. He has further pointed out that the applicant initially was ready to settle the matter and has made settlement accordingly. Now he has taken his words back which shows the attitude of the applicant. He has further argued that the cheque was not returned due to amount insufficient, but it was sent back for the stoppage of payment and this cannot be covered under Section 138 of the Negotiable Act. On this point he relied on the judgment laid down in “Raj Kumar Khurana Vs. State of (NCT of Delhi) & Anr. Reported in 2009 3 ALL MR (Cri) 1881 (S.C.)”. 02. Learned counsel appearing for the applicant has submitted that the accused has issued this cheque 10 years back and the proposal for settlement was given earlier many times. However, the accused has rejected it. He has further submitted that the applicant has lost the amount of interest and there are other cases of the similar nature pending between the accused and the complainant. 03. In the judgment passed by the learned trial Court and the Sessions Court all the points, the ingredients of Section 138 of the Negotiable Instruments Act, presumption, rebuttal are all discussed in detail. I do not find any illegality in view taken by the Sessions Judge. In the case of “Raj Kumar Khurana Vs. State of (NCT of Delhi) & Anr.” (Supra) the bank has returned the cheque with endorsement, the cheque reported lost by the drawer and therefore that was not brought within the mischief of the provision under Section 138 of the Act. In the present case, the cheque was 4 dishonoured because of the instructions given by the accused not to pay the amount and there was no other payment against the due debt by the applicant accused. Moreover, the complaint was filed against the partnership firm through the partners. However, the other accused are acquitted and only accused No.3 is held guilty as he alone by keeping the other partners in dark, has issued the cheque. Therefore, these rulings of “ Raj Kumar Khurana Vs. State of (NCT of Delhi) & Anr.” (Supra) and “Anil Hada Vs. Indian Acrylic Ltd.” (Supra) are distinguishable from the facts of the present case. Hence, no case is made out to allow the revision application. 04. The applicant-accused has paid the entire amount of compensation of Rs.3,75,000/- in the Court. The learned counsel appearing for the applicant-accused prays that only on the point of quantum it may kindly be considered. The applicant-accused is convicted for three months S.I. He was also in the prison for 10 days. Considering the facts substantive sentence is reduced as 5 follows. (a) Revision Application is rejected. (b) On the point of quantum, the prayer of reduction is accepted and sentence of 3 (three) months S.I. is reduced to 20 (twenty) days S.I. (c) Applicant-accused is directed to surrender before the learned JMFC, Kolhapur till 30th September, 2009. (d) The accused is entitled to 10 (ten) days set off as per Section 428 of Code of Criminal Procedure. (e) The accused is permitted to withdraw the amount of Rs.3,75,000/- and permitted to withdraw share certificates produced on the record of JMFC, Kolhapur. (MRIDULA BHATKAR, J.)