1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.169/2005 M/s Shri.Krishna Automobiles and anr. Applicants Vs. Total Finaelf India Ltd.& anr. Respondents Ms.Rohini M.Dandekar,for the applicant Mr.Subodh Desai and Mr.Vinod Kothari i/b Apex Law Partners for Res.no.1 Mr.S.A.Shaikh APP for State CORAM: MRS.MRIDULA BHATKAR,J. DATE : 6th October,2009 P.C. . This Revision Application is preferred against the orders dated 26/4/2005 and 5/5/2005 passed by the learned Sessions Judge, Mumbai. It is the case under section 138 of the Negotiable Instruments Act . The applicants are the original accused before the Metropolitan Magistrate Court who are convicted by the said Court . Both the accused were sentenced to pay fine of Rs.2,44,040/ i/b accused no.2 to suffer S.I.for three months out of which fine ofRs.1,22,020/- was to be paid to the complainant as the compensation.The said Judgment and Order of the Metropolitan Magistrate was challenged by the applicants/ accused in criminal appeal before the Sessions Judge . 2 However, the said appeal was disposed of by the order dated 26/4/2005 by the learned Sessions Judge. While passing this order the learned Sessions Judge has asked the counsel appearing for respondent no.2 whether the respondents were interested in the conviction or in the funds. The learned counsel appearing for the respondents opted for the money and thereafter the learned Sessions Judge accepted it as a consent and ordered that the respondents were allowed to withdraw the amount and allowed the appeal ,setting aside the conviction .In the said order he has also mentioned that the applicants/ original accused undertook to withdraw the Civil suit filed by them in the Civil Court at M.P.. It is pointed out that on the next date the learned counsel for the original accused moved the application stating that the consent was not given by the accused for the withdrawal of the money by the respondent. Alongwith this application an affidavit of the counsel who represented the original accused in the appeal was filed in which she has categorically stated that no such consent was given by the original accused for such settlement. The learned Sessions Judge after considering the said application and affidavit passed another order dated 5/5/2005 ,refused to grant stay to his order dated 26/4/2005 3 and disposed of that application.Thus, both the orders are challenged in the present Revision. 2] The learned counsel appearing for the applicant has submitted that the consent was never given though original accused were represented at the relevant time by the advocate who was junior and in fact he did not give any such consent. The learned counsel appearing for the respondent/ original complainant submits that this matter has been dragged for a long time and if it is sent back , a time bound programme is to be given. 3] The order dated 26/4/2005 passed by the learned Sessions Judge allowing the appeal and thereby setting aside the conviction is not legal. It does not reflect whether both the parties i.e.the original complainant and the accused have given consent to settle the matter in the terms and conditions which are appearing in the judgment . In absence of express consent of the parties i.e. the complainant and the accused the Court should not pass such order that both the parties accepted the consent terms . Both the orders i.e.26/4/2005 and 5/5/2005 are hereby set aside . As on today the order of conviction passed 4 by the learned Magistrate stands. Criminal appeal is also restored and the matter is remanded back to the Sessions Court. 4] The original complainant is directed to deposit the amount which is withdrawn , in the Sessions Court on or before 4/11/2009 . 5] All the parties to appear before the Sessions Court on 4/11/2009 at 11 a.m. . The appeal is to be decided till 31/12/2009. (MRS.MRIDULA BHATKAR,J.)