1 Criminal Rev.Appl.No.269 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.269 OF 2010 Ravindra S/o.Nimba Wani, Age-54 years, Occu-Agriculturist, R/o.Near Balaji Bank, Parola, Tq.Parola, Dist.Jalgaon. APPLICANT VERSUS 1. State of Maharashtra Through Public Prosecutor, 2. Navnath Nagari Co-operative Society Ltd., Parola, Tq.Parola, Dist.Jalgaon, Through Sandeep Abhiman Patil, Age-32 years, Occu-Service, Clerk RESPONDENTS Mr.A.K.Tiwari, learned counsel for the applicant. Ms.Y.M.Kshirsagar, learned A.P.P. for respondent State Mr.V.D.Kadam, learned counsel for respondent no.2. (CORAM : A.V.POTDAR, J.) DATE : 25/08/2011 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 2. This criminal revision is an exception to the general rule. The 2 Criminal Rev.Appl.No.269 of 2010 Revision applicant has filed this revision being aggrieved by the order passed in Criminal Appeal No.49/2009, by the Additional Sessions Judge, Amalner vide dated 15/09/2010, confirming the judgment and order dated 27/10/2009 passed by the J.M.F.C. Parola, in STC No.205/2007, by which the revision applicant was convicted for an offence punishable u/s. 138 of the N.I.Act and was sentenced to suffer RI for 2 months and was directed to pay compensation in the sum of Rs.35,000/- to the complainant/co-operative society. 3. During the course of submissions across the bar, it is brought to my notice that the complaint was filed by respondent no.2 herein against the applicant for an offence punishable u/s. 138 of the N.I.Act as the cheque issued by the applicant, drawn on Parola Urban Co-operative Bank, was bounced and returned to respondent no.2 with remarks “funds insufficient”. Inspite of statutory notice was served on the revision applicant on 16/01/2007, no repayment was made till 31/01/2007. Hence the complaint was filed. It is brought to my notice that after the parties were directed to lead the evidence in respect of their contentions and the judgment was pronounced by the Trial Court on 27/10/2009, the amount of the cheque, which was bounced, was deposited by the petitioner applicant on 27/10/2009 of which photo copy is produced on record. Apart from it, respondent no.2 has also filed his affidavit in reply, in which in clear terms, he has admitted that in fact the applicant had deposited an amount of Rs.23,000/- on 27/10/2009. Unfortunately, in criminal appeal 3 Criminal Rev.Appl.No.269 of 2010 preferred by the applicant against the order of conviction bearing Criminal Appeal No.49/2009, this fact remained to be mentioned in the appeal memo. After the judgment was pronounced by the Trial Court, the applicant has also deposited an amount in the sum of Rs. 5,000/- before the Lower Court to avail the facility as provided u/s. 389(3) of Cr.P.C. to release him on bail after his conviction before the Lower Court till the appeal to be preferred. This fact is also admitted by respondent no.2 in the affidavit in reply filed. It further appears that at the time of admission of the appeal, on 25/11/2009, further amount of Rs.2,000/- was deposited by the applicant in the First Appellate Court and then only the order of bail was passed. Fact of deposit of amount in the First Appellate Court was not disputed, but admitted by the respondent no.2 in his affidavit in reply filed before this Court. 4. During the course of arguments, my attention is drawn towards the reasoning part of the criminal appeal no.49/2009, which came to be dismissed on 15/09/2010, wherein it is observed by the First Appellate Court that when the appeal came for hearing on board, at that time, learned counsel for appellant and appellant were absent, hence the First Appellate Court, after perusal of the record, pronounced the judgment confirming the conviction passed by the Trial Court. On perusal of the judgment of the First Appellate Court nowhere it is mentioned that the amount was deposited in the Court. It is further brought to my notice that subsequent to the 4 Criminal Rev.Appl.No.269 of 2010 judgment delivered by the First Appellate Court, entire dues towards the loan standing in the name of the applicant were satisfied by him and to that effect, respondent no.2 has issued ‘no dues certificate’, of which photo copy is annexed at Exh.R-1 alongwith affidavit in reply filed by the respondent no.2. In this background, it is urged that now nothing is due towards the applicant and it is also admitted by respondent no.2 in his affidavit in reply and now they have no objection to allow this criminal revision application, as they have no grievance against the present applicant. Perusal of the record indicates that before the judgment was delivered by the First Court, the amount of the cheque bounced was deposited by the applicant with respondent no.2. It is unfortunate on their part that this fact was neither brought to the notice of the Trial Court nor First Appellate Court. In view of this, case is made out to allow the criminal revision application by setting aside the order passed by the First Appellate Court, convicting the applicant for the offence punishable u/s. 138 of the N.I.Act and maintaining the sentence awarded by the Trial Court. 5. In view of this, criminal revision application is allowed in terms of prayer clause ‘C’ and the judgment and order passed by the Additional Sessions Judge, Amalner in Criminal Appeal No.49/2009 dated 15/09/2010 is hereby quashed and set aside, and the applicant is hereby acquitted of the offence u/s. 138 of the N.I.Act. The applicant is also entitled for refund of the amount of Rs.5,000/- 5 Criminal Rev.Appl.No.269 of 2010 deposited in the Trial Court on 27/10/2009 and Rs.2,000/- deposited in the First Appellate Court on 25/11/2009. Criminal Revision Application stands disposed of accordingly. 6. Rule thus made absolute as indicated above. (A.V.POTDAR, J.) khs/AUG.2011/cri.rev.269-10