1 NS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.1632 OF 2010 WITH CRIMINAL BAIL APPLICATION NO.170 OF 2010 WITH CRIMINAL APPLICATION NO.1633 OF 2010 WITH CRIMINAL BAIL APPLICATION NO.171 OF 2010 WITH CRIMINAL APPLICATION NO.1634 OF 2010 WITH CRIMINAL BAIL APPLICATION NO.172 OF 2010 Praduman Kumar Sharma ...Applicant. v/s. Sangita J. Sancheti & Anr. ...Respondents. WITH WRIT PETITION NO.1120 OF 2010 WITH WRIT PETITION NO.1121 OF 2010 WITH WRIT PETITION NO.1122 OF 2010 Sangita J. Sancheti ...Petitioner v/s. Praduman Kumar Sharma & Anr. ..Respondents Mr. S.V.Marwadi i/by Vinayak Katti, ,advs. For the Applicant ( and for the respondent no.1 in W.P.Nos.1120 to 1122 of 2010). Mr. Kirit Hakani i/by Amit I. Sheth and Rahul K. Hakani, advs. For the Respondent No.1. (and for the petitioner in W.P.Nos.1120 to 1122 of 2010) Ms U.V.Kejriwal, APP for the State. 2 CORAM : J.H. BHATIA, J. DATED : APRIL 13, 2011. P.C. 1 Writ Petition No.1121 of 2010, which is connected with this matter is not on board. With consent, the said writ petition is taken on board. 2 All the criminal applications are filed by the original accused, who was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act in three criminal cases bearing nos.2129/SS/2005, 2130/SS/2005 and 2149/SS/2005 and was sentenced to undergo S.I. for two months and to pay compensation of Rs.5,75,000/- each in two cases and to undergo S.I. for two months and to pay compensation of Rs.3,50,000/- in third case. Appeals filed by the accused were dismissed. These applications are filed under Section 482 of Cr.P.C. challenging the conviction and sentence. The respondent no.1 in each of these applications is original complainant. She has filed three petitions for enhancement of the sentence awarded by the Courts below. 3 Case of the complainant is that the complainant, her father and brother had entered into four agreements with the accused on 10.7.2000 and as per the said agreements, complainant, her father and 3 brother undertook completion of construction of buildings of the accused. However, due to some disputes, business of the joint venture was dissolved. As per the deed of dissolution dated 4.12.2001 in discharge of the liability, accused issued six post dated cheques for total amount of Rs.16,50,000/- including the present three cheques. Out of them, two cheques were of Rs.4 lac each and the third cheque was of Rs.2,50,000/- . Said 3 cheques were presented for encashment but were returned unpaid. In case of two cheques, they were dishonoured on the ground that payment was stopped by the drawer while third cheque was dishonoured on the ground of insufficient funds. In respect of each cheque, notice was served for payment within stipulated period but the accused failed to make the payment which resulted in filing separate complaints under Section 138 of the Negotiable Instruments Act. After the trial the accused was convicted and sentenced as stated above. Cheques are of the year 2002. 4 The learned counsel for the accused/applicant prayed that sentence of imprisonment may be set aside and compensation amount may be reasonably enhanced. On the other hand, the learned counsel for the complainant contended that there should be some imprisonment as well as fine and out of fine amount, compensation may be paid, 4 instead of directing the accused to make payment of compensation only. 5 Dispute arose out of the joint business venture, which was dissolved in the year 2001. Cheques were post dated and admittedly, cheques were presented in the year 2002 and were dishonoured. At the time of hearing before this Court, the learned counsel for the accused/applicant did not press challenge to the conviction and restricted his arguments only to the point of sentence. The learned counsel for the accused pointed out that on 4.7.2007, accused had deposited amount of Rs.1.5 lac before the Court of Metropolitan Magistrate and in the year 2009, he deposited an amount of Rs.13.5 lac before the Sessions Court and that amount has also been withdrawn by the complainant. Thus, by the year 2009, total amount of Rs.15 lac was deposited and paid to the complainant. From the facts noted above, it appears that payment of the amount was delayed by about 7 years. The complainant could be appropriately compensated, if amount would carry interest at the rate of 10% approximately. In view of this, in my opinion, purpose will be served if the sentence of imprisonment is reduced and the applicant is required to pay fine out of which compensation amount may be paid. 6 For the aforesaid reasons, criminal applications are partly allowed and while the conviction of the accused/applicant in all the three 5 cases is maintained, the order of sentence stands modified as follows: In Criminal Case No.2129/SS/2005, the accused is sentenced to imprisonment till rising of the Court and to pay fine of Rs. 7,10,000/- and in default to pay fine, he shall undergo S.I. for two months. In Criminal Case No.2130/SS/2005, the accused is sentenced to imprisonment till rising of the Court and to pay fine of Rs. 7,10,000/- and in default to pay fine, he shall undergo S.I. for two months. In Criminal Case No.2149/SS/2005 while the conviction for the offences punishable under Section 138 is maintained, sentence stands modified and the applicant is sentenced to undergo S.I. till the rising of the Court and to pay fine of Rs.4,50,000/- and in default to pay fine to undergo S.I. for two months. 7 As an amount of Rs.15 lac is already deposited, the balance amount be deposited within three weeks. After the amount is deposited, the complainant shall be paid compensation of Rs.7 lac each in first two cases and Rs.4,40,000/- in third case, inclusive of the amount already withdrawn. 8 Accused has undergone the sentence of imprisonment till 6 rising of the Court. 9 Writ petitions stand disposed off accordingly. 10 As the main applications are disposed off, bail applications do not survive and stands disposed off accordingly. (J.H. BHATIA,J.)