1 WP 2448/2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2448 OF 2008 Mr. Sanjay Ramlal Barot .... Petitioner v/s Mr. Pramod Ramchandra Sawant & Anr. ..... Respondents. ---- Mr. Jitendra G. Shukla i/b Ms. Leela D. Malu & G.H. Shukla & Co. for the Petitioner. Mr. A.S. Shitole, APP for the State. Mr. Rahul Arote for Respondent No.2. ---- CORAM: V. M. KANADE, J. DATE : 25th October, 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of Respondent No.2. 2. This Writ Petition is filed by the original accused, challenging the judgment and order passed by the learned Metropolitan Magistrate in Case No.1114 of 2005 dated 06/07/2007 whereby the learned Magistrate was pleased to convict the Petitioner for the offence punishable under 2 WP 2448/2008 section 138 of the Negotiable Instruments Act sentencing him to pay fine of Rs 2 lakhs out of which Rs 75,000/- was to be paid to the complainant as compensation and also the order passed by the Sessions Court dated 14/11/2008 whereby the learned Sessions Judge was pleased to modify the order passed by the learned Metropolitan Magistrate and that he sentenced the Petitioner to suffer simple imprisonment for 15 days and directed him to pay compensation of Rs 1,75,000/- and, in default, to suffer further simple imprisonment for 3 months. 3. The learned Counsel appearing on behalf of the Petitioner submitted that the learned Magistrate erred in convicting the Petitioner for the offence punishable under section 138 of the Negotiable Instruments Act. He submitted that the cheque which was dishonoured was not relatable to the amount which was due and payable to the complainant. He invited my attention to the written submissions filed in the Sessions Court in support of the said submission. It is submitted that the Trial Court erred in convicting him and the Sessions Court erred in relying on the said finding which was given by the Trial Court. 4. On the other hand, the learned Counsel appearing on behalf of Respondent No.2 submitted that the Petitioner had suppressed the material facts from this Court. He submitted that the Petitioner had not challenged the order of conviction passed by the Metropolitan Magistrate by filing an appeal in 3 WP 2448/2008 the Sessions Court. The finding of the learned Metropolitan Magistrate, therefore, was confirmed and was unchallenged and, therefore, it was not open for the Petitioner in this Writ Petition to challenge the order of the learned Magistrate since he had not exhausted the alternate remedy which was available. It is then submitted that the Petitioner had deliberately annexed only an operative part of the order of the Sessions Court. The learned Counsel for Respondent No. 2 tendered a copy of the judgment and order passed by the Sessions Court in the Criminal Revision Application. He submitted that the Criminal Revision Application was filed by the original complainant for enhancement of the sentence awarded by the Trial Court. He submitted that by a reasoned order, the Sessions Court had confirmed the finding of the Trial Court and had further modified the sentence by sentencing the Petitioner to undergo simple imprisonment for 15 days and directing the Petitioner to pay the amount of Rs 1,75,000/- to the complainant and, in default, to suffer simple imprisonment for 3 months. He submitted that no case is made out for interfering with the orders passed by both the Courts below. 5. In my view, there is much substance in the submissions made by the learned Counsel for Respondent No.2. Petitioner herein has not challenged the order of conviction passed by the learned Magistrate by filing an appeal in the Sessions Court and, therefore, the finding of conviction which is given by the Trial Court has become final and it is 4 WP 2448/2008 not now open for the Petitioner to challenge the judgment and order of the learned Magistrate since he has not exhausted the alternate remedy of filing an appeal against the order of conviction. It is, therefore, not open now for the Petitioner to challenge the said finding. 6. So far as the question of setting aside the order of the Sessions Court is concerned, in my view, the Sessions Court has given cogent reasons for modifying the sentence awarded by the learned Magistrate and, therefore, no case is made out for interfering with the order passed by the Sessions Court while exercising writ jurisdiction under Article 227 of the Constitution of India, particularly when the order of the Magistrate has become final since it was not challenged in appeal by the accused. Even otherwise, the Sessions Court has directed that the Petitioner should undergo simple imprisonment for 15 days. The Magistrate had directed the Petitioner to pay fine of Rs 2 lakhs and out of Rs 2 lakhs, only the amount Rs 75,000/- was directed to be paid to the complainant as compensation whereas the Sessions Court has modified that and has directed that the compensation of Rs 1,75,000/- should be paid directly to the complainant and the amount of compensation, in fact, has been reduced from Rs 2 lakhs to Rs 1,75,000/-. 7. Under these circumstances, Writ Petition is dismissed. (V.M. KANADE, J.) 5 WP 2448/2008