- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.2456 OF 2006 WRIT PETITION NO.2456 OF 2006 WRIT PETITION NO.2456 OF 2006 Mr.J.Alexander ...Petitioner vs. The State of Maharashtra & Ors. ...Respondents Mr.M.V.Aiya for the Petitioner Mr.Y.S.Shinde A.P.P. for State None for the Respondent No.2. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 25,2008 : JULY 25,2008 : JULY 25,2008 P.C.: P.C.: P.C.: 1. Heard the learned Advocate for the Petitioner. On 17th December 2007, this court re-issued the notice to the second Respondent intimating that the Writ Petition will be decided finally at the stage of admission. The office endorsement shows that the second respondent has been duly served with notice. None appears for the second Respondent. 2. The second respondent is the original complainant in a complaint filed against the Petitioner and the third respondent herein alleging commission of offence under section 138 read with section 141 of the Negotiable Instrument Act,1881. 3. In the complaint, the second respondent has alleged that there was a lease agreement by and between the second respondent and the third respondent. It is alleged that by - 2 - the said lease agreement, the third respondent accepted the liability to pay Rs.65,10,000/- and the third respondent agreed to discharge the liability by instalments as set out in the lease agreement. It is stated that towards the partial discharge of liability, two cheques in the sum of Rs.3,25,000/- each were issued by the third respondent which were dishonoured. It is alleged that the cheques were signed by the petitioner as a Director of the third respondent. 4. The case of the second respondent was that the alleged cheques were signed by the petitioner. The petitioner denied to have signed the cheques in his evidence. By a judgment and order dated 11th August 2006, the learned Special Metropolitan Magistrate convicted the petitioner and the third respondent and they were sentenced to pay fine of Rs,6,51,000/-. In default, the petitioner was directed to suffer simple imprisonment for a period of six months. An appeal was preferred by the petitioner before the Sessions Court in which an application for suspension of sentence was made by the petitioner. The learned Sessions Judge suspended the sentence subject to the petitioner depositing a sum of Rs.3,25,000/- within a period of two months. 5. The submission of the learned counsel for the petitioner is that in companion appeals arising out of similar complaints, the Sessions Court suspended the sentence without - 3 - imposing any condition. Inviting my attention to the order dated 25th July 2006 passed by the learned Special Metropolitan Magistrate, he submitted that the finding recorded by the learned Magistrate on execution of the lease agreement is perverse. He, therefore, submitted that on par with other Appeals, in the present case the sentence ought to have been suspended unconditionally. 6. I have carefully considered the submissions. It appears from the documents annexed to the petition that the petitioner denied his signatures on the cheques on the basis of which the complaint was filed. An application was made on 19th July 2006 by the second respondent pointing out that the petitioner has denied the signature on cheques and the documents relied upon in the complaint. A prayer was made in the said application that the admitted signatures of the petitioner be compared with the disputed signatures or in the alternative, the documents be sent to a handwriting expert. The said application was rejected by the learned Magistrate by order dated 26th July 2006. The relevant part of the said order reads thus : ". I have compared the signature on the bail bond i.e. Exh.2A with the signature on the cheques Exh.P-4 collectively. Exh.2A is a admitted document as to signature i.e. made by accused No.2. Exh.P-4 are - 4 - allegedly signed by accused No.2. Prima Facie, it is seen that signature on Exh.2A and Exh.P-4 are different. The accused No.2 has categorically denied signatures on Exh.P-4. The complainant has filed this application at the belated stage when matter has fixed for final argument. The complainant has alternatively prayed that documents be sent to handwriting expert. Application is not tenable at this stage. Hence, rejected." 7. Notwithstanding what is stated above, the petitioner was convicted by the learned trial Judge. Apart from this aspect, a submission is made that in view of the decision of the Apex Court in case of SMS Pharmaceuticals Ltd. vs. Neeta Bhalla & Others [2005 (8) SCC page 89], section 141 of the said Code could not be invoked against the petitioner. 8. Considering these peculiar facts, the learned Additional Sessions Judge could not have imposed a condition of depositing a sum of Rs.3,25,000/-. 9. Hence, I pass the following order : i) Impugned order dated 15th September 2006 is modified and it is directed that the condition imposed by the learned Additional Sessions Judge of depositing a sum of Rs.3,25,000/- stands set aside. The substantive sentence - 5 - is suspended till the disposal of the Appeal. ii) Hearing of the Appeal is expedited. iii) It is made clear that all contentions of the parties in pending Appeal are expressly kept open and the observations which are made in this order are for limited purpose of testing the legality and validity of the impugned order. iv) The observations which are made in this order shall not be construed as any findings recorded on the merits of the pending Appeal. v) The Petition is disposed of. JUDGE JUDGE JUDGE