1 15 appw 255.10 in wp 2437.09.doc srk- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 255 OF 2010 AND WRIT PETITION NO. 2437 OF 2009 Pandurang Govind Limaye .. Applicant Versus M/s. Atreya Promoters & Builders & Ors. .. Respondents Mr.Ashok B. Tajane for the Applicant. Mr. Subhash Jha i/b Law Global for the Respondent nos.1 & 2. Mrs. A.A.Mane, A.P.P. for the Respondent no.3/State. CORAM : J. H.BHATIA, J. DATE : 18TH AUGUST, 2010 P.C.: 1 Heard the learned counsel for the parties. This is an Application filed by the original complainant seeking leave to withdraw the amount of Rs.35,00,000/- deposited in the court of Judicial Magistrate First Class, Pune. 2 To state in brief: In 2002 a compromise decree was passed in civil litigation between the parties and the accused M/s Atreya Promoters and Builders were required to pay Rs.35,00,000/- to the complainant, who is the present 2 15 appw 255.10 in wp 2437.09.doc Applicant. The Respondent/Accused issued a cheque of Rs.35,00,000/- which was dishonoured. In complaint under section 138 of the Negotiable Instruments Act the accused was convicted and sentenced to imprisonment and also to pay a fine of Rs.35,00,000/-. Appeal against that conviction was dismissed. The Revision Application filed by the accused and again one Writ Petition filed by him, to quash the conviction also came to be dismissed. He filed second Writ Petition being Criminal Writ Petition No. 2437 of 2009 seeking extension of time to surrender to undergo imprisonment on the ground that there was possibility of amicable settlement. To see the bonafides of the Respondent, on 18 th January, 2010 in Criminal Writ Petition No. 2437 of 2009, this court directed the present Respondent to deposit amount of Rs.27,00,000/- with the trial court within 10 days. That amount was deposited. On 7 th May, 2010 by another order in the same Petition, this court directed him to deposit further amount of Rs.8,00,000/-, that amount was also deposited by the said order this court directed to invest that money in fixed deposit with the nationalized bank. 3 By this Application, the Applicant/original complainant seeks permission to withdraw the amount. Admittedly, the accused had deposited amount of Rs.5,00,000/- before the trial court, besides the amount of Rs.35,00,000/- deposited as per the above referred two orders of this Court. The amount of Rs.5,00,000/- which was deposited earlier has been withdrawn by the complainant. Mr. Jha, learned counsel for the Respondent/Accused objected to the Application on the ground that as per 3 15 appw 255.10 in wp 2437.09.doc the above referred two orders of this court, the accused was directed to deposit total amount of Rs.35,00,000/- in addition to amount of Rs.5,00,000/-, which was already deposited, just to see whether there could be amicable settlement between the parties, if the better sense prevailed. Whether the matter can be finally amicably settled or not is a different question. If the matter is settled the accused may be saved of undergoing the sentence of imprisonment. In no circumstance, the amount of Rs.35,00,000/- which is cheque amount can be refused to the complainant. As he has already withdrawn Rs.5,00,000/- he can be permitted to withdraw further amount of Rs.30,00,000/-. The amount cannot be held back just to compell him to enter into compromise and compound the case. 4 For the aforesaid reasons, the Application is allowed. The Applicant/ Complainant is allowed to withdraw amount of Rs.30,00,000/- out of Rs.35,00,000/- which is deposited by the Accused before the trial court as per the orders passed by this court. 5 Application stands disposed of. 6 At this stage, Mr. Jha, learned counsel for the Respondent/Accused seeks stay to this order. Request to stay the order is rejected. (J.H.BHATIA, J.)