ssm 1 7.revn.565.09.gr. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 565 OF 2009 Kisan Raghuvir Tusambar ....Applicant Versus Vashshthamuni Ramkrupal Pande and anr. ....Respondents WITH CRIMINAL REVISION APPLICATION NO. 566 OF 2009 Vimal Kisan Tusambar ....Applicant Versus Vashshthamuni Ramkrupal Pande and anr. ....Respondents WITH CRIMINAL REVISION APPLICATION NO. 567 OF 2009 Vimal Kisan Tusambar ....Applicant Versus Vashshthamuni Ramkrupal Pande and anr. ....Respondents ____________ S/Shri. Sachin Gite i/by M. S. Karnik for the Applicants. Smt. V. R. Bhosale, APP for the Respondent No. 2. CORAM: J. H. BHATIA, J. DATED : 11 TH APRIL, 2011. P.C.: Heard learned Counsel for the Revision Applicants who are original Accused. ssm 2 7.revn.565.09.gr. 2. Applicant Vimal in Revision Application No. 566/2009 and 567/2009 is wife of Applicant Kishan who is Revision Applicant in Application No. 565 of 2009. These three Revision Applications are filed to set aside the order of conviction and sentence passed by the Learned Magistrate in the criminal case under Section 138 of the Negotiable Instruments Act and to set aside the dismissal of their appeals against the conviction and sentence. 3. The Complainant i.e. Respondent No. 1 in each case had filed three cases bearing Nos. 5300 of 2005, 4069 of 2005 and 5299 of 2005. First case was against the husband and remaining two cases were against the wife. According to him, he had contracted to purchase a house of accused-applicant Kishan situated at Devalali, Shantinagar by name “Swami Samarth” for consideration amount of Rs.4,80,000/-. Accordingly, he had paid Rs.4,80,000/- to him. After having received full consideration amount, accused Kishan was avoiding to execute the Sale Deed ssm 3 7.revn.565.09.gr. giving one or the other excuse. Finally, the accused persons told him that they were not in a position to sell the property but willing to refund the amount of consideration. Accordingly, Accused Kishan issued a cheque of Rs.1,80,000/- and his wife Vimal issued two cheques of Rs.1,50,000/- each. The cheques were presented but were dishonoured by the drawee banks. Inspite of statutory notice, accused person failed to make payments. Therefore, on the basis of each cheque, separate three cases under section 138 of the Negotiable Instruments Act were filed. 4. The accused persons pleaded not guilty. According to them in December, 2003, the complainant had lifted and taken away three cheques from the table of the accused and had misused them. The complainant was cross examined at length. He explained that the documents about the agreement of Sale were taken back by the accused persons, when they issued three cheques for refund of consideration amount. The accused persons did not enter in the witness box to prove their contention that in ssm 4 7.revn.565.09.gr. December, 2003 the cheques were taken away from the table by the complainant without their permission. 5. Admittedly, the cheques were signed by the Accused persons. The cheques appeared to have been issued in March, 2005. They were presented to the banks and were dishonoured. Inspite of the statutory notice payments were not made. If the complainant had wrongly taken away the said cheques from the table of the accused persons, the accused could have immediately reported the matter to the police or could have issued stop payment notices to the banks and could also have issued notice to the complainant about the circumstances in which he had taken away the said cheques from the table. However, no such complaint was lodged nor such notices were issued and also bank was not informed to stop the payment. Taken into consideration these circumstances, the Trial Court held that the offence under Section 138 of the Negotiable Instruments Act is proved and convicted the accused persons and sentenced them to simple imprisonment for ssm 5 7.revn.565.09.gr. one month and to pay the cheque amount as compensation and in default to pay, they were required to undergo simple imprisonment for three months. The Appellate Court dismissed the Appeals observing that he fully agreed with the observations made by the Trial Court. The learned Counsel for the Accused-Appellant could not point out illegality, irregularity or impropriety in the impugned order of conviction and sentence. The learned Counsel contended that the Applicant Vimal is woman and therefore lenient view be taken. At the same time on instructions given to him, he stated that the applicant accused persons are not in a position to make any payment. In view of this, in my opinion, the sentence awarded by the Trial Court is reasonable and no interference is warranted. 6. In view of this, these Revision Applications stand dismissed. (J. H. BHATIA, J.)