1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL REVISION APPLICATION NO.49 OF 2010 Rajan M. Shelake ...Applicant. v/s. Gadhinglaj Vyapari Nagari Sahakari Pat Sanstha Ltd. And Ors. ...Respondents. Mr. Datta H. Pawar ,adv. For the Applicant. Mr. A.M.Savagave i/by S.S.Patwardhan, advs. For the Respondent No.1. Smt. V.R.Bhosale, APP for the R.No.2. CORAM : J.H. BHATIA, J. DATED : MAY 2, 2011. P.C. 1 Rule. Rule made returnable forthwith. Heard. 2 Revision application is filed against the order of conviction under section 138 of the Negotiable Instruments Act and to undergo sentence of simple imprisonment for three months and to pay amount of Rs.1,48,755/- being the cheque amount as compensation. The appeal filed by the accused against the conviction and sentence was dismissed by the Sessions Court. 3 To state in brief, the applicant/accused had obtained loan of Rs.1,50,000/- from the complainant/bank , who is respondent no.1 before this Court. Loan was sanctioned on 28.1.2005 and the amount was to be repaid in 5 years in instalment of Rs.2,500/- per month with interest. 2 Accused was irregular in making the payment of the instalments and, therefore, bank recalled the whole of the loan amount on 27.3.2006. Accused issued a cheque of Rs.1,48,755/- in favour of the complainant/bank to pay the complete balance amount. However, that cheque was dishonoured. In spite of service of statutory notice, he did not make the payment. On perusal of the record, I do not find any substance or material to interfere in the order of conviction. Both the Courts below gave the concurrent findings that the accused/applicant had committed the offence under Section 138 of the Negotiable Instruments Act. 4 The learned counsel for the accused/applicant prayed for lenient view in respect of sentence of the imprisonment. According to him, applicant was arrested on 27.1.2010 when his appeal was dismissed by the Sessions Court. Thereafter, by the order dated 10th February, 2010 passed by this Court, he was granted bail subject to his depositing Rs.40,000/- . He had already deposited Rs.37,000/- before the trial Court. According to the learned counsel, amount of Rs.40,000/- was actually deposited on 16.2.2010 and on the same day, he was released. Thus, applicant was in custody for 21 days. It appears that the applicant was petty businessman and he had obtained loan of Rs.1,50,000/-, which 3 was to be repaid in monthly instalments in the period of 5 years but when he did not repay some of the instalments, it appears that the bank forced him to repay whole of the amount. Therefore, he issued cheque in question. As his financial condition did not permit, he could not honour the cheque. Instead of taking recourse to the civil remedy, the bank opted for criminal proceedings under Section 138 of the Negotiable Instruments Act. Had he not issued the said cheque, possibly he could have cleared the loan by the year 2010 by paying instalments but because he issued cheque for the whole of the amount and he could not make the full payment, he was convicted. 5 Taking into consideration all the facts and circumstances, in my opinion, it would be too harsh to detain him in jail for a period of three months. Therefore, in my opinion, ends of the justice will be served if sentence of imprisonment is reduced to the period as already undergone. 6 Therefore, the revision application is partly allowed. His sentence of imprisonment is reduced to period as already undergone. He has deposited Rs.77,000/-. Balance amount be paid by him within two months from this date. If he does not make the payment, the trial Court shall proceed to execute the sentence in default to pay money. 4 7 Revision application stands disposed off accordingly. (J.H. BHATIA,J.)