1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Revision Application No.121 of 2009 WITH Criminal Revision Application No.122 of 2009 Manish Bhagwandas Sampat ... ... Applicant v/s. State of Mah. & anr. ... ... Respondents Mr.Niranjan Mundargi i/by Shounak Mehta for Applicant. Mr.Shailesh More, APP for State. ----- CORAM : SMT.ROSHAN DALVI, JJ. Dated : 23rd November, 2009 P.C. : 1.The Applicant-accused is a stock broker. The complainant was his client. The Applicant gave two cheques to the complainant in respect of the stock broking transactions. The cheques were dishonoured. The complaint under Section 138 of the Negotiable Instruments Act was filed. The Applicant has been convicted by the learned Metropolitan Magistrate, 43rd Court, Borivali, Mumbai and his Appeal has been dismissed by the Sessions Court. 2.In the Sessions Court, the Applicant deposited Rs.11 Lakhs. After filing these two Revision Applications, the Applicant deposited a sum of Rs.6 Lakhs. These 2 2 cheques represent the entire initial principal amount on the two dishonoured cheques. The cheques were issued in September 2006. The first liability was discharged in December 2008. The last liability was discharged between April and June 2009. 3.On 8th April 2009, a statement was made by the Advocate for the complainant that if the remainder of the principal amount, which was until then was not deposited, would be paid within one week, the complainant was willing to compound the offence. The amount was not paid within one week. However, it has been paid within about 3 months. 4.On 1.10.2009, the complainant made a statement that she did not want to compound the offence, though she had received Rs.17 Lakhs by then. 5.The only aspect before the Court is the one of strict interpretation and liability under the statement made before the Court on 2 different dates. The complainant was willing to compound the offence, if she was paid off. This willingness was shown to Court on 9.4.2009. Compliance of that order was recorded on 24.6.2009 and the case was adjourned as it was to be considered for compounding. It was thereafter that the complainant did not want to compound. It would have to be seen, whether 3 strictly speaking, the initial willingness has been resiled. Since the amount was not paid within one week, the complainant could have resiled from the initial willingness to compound. However, the remainder of the amount came to be deposited later. 6.The principal amount of the cheques is the only amount given by way of compensation. There has been no enhancement application filed therefrom. 7.Since the parties are businessmen, the question of interest upon investment must be taken to be upper most in their minds. The liability came to be incurred in September 2006. Interest follows as a matter of course upon the principal liability. That liability was initially refuted. Thereafter it has been admitted. Upon admission, it has been discharged. That has taken approximately 3 years. The amount, therefore, remained with the accused for a period of 3 years and could not be invested by the complainant. In fact, the very transactions represent only a desire to invest since the complainant invested in equity shares. For the purpose of compounding, the complainant, therefore, must be allowed some reasonable amount of interest for the time that her investments remain uninvested. 8.The reasonable interest during the last 3 years offered 4 by banks in commercial transactions was around 8% per annum. The amount that the Applicant would be further required to pay would reasonably be at the rate of 6% per annum. For the entire amount of the principal, not accounting for the year in which part payment was made, the total interest liability would be Rs.1,02,000/-. 9.The complainant has not appeared before the Court after informing the Court that she did not want to compound. Hence, the complainant cannot be heard upon additional liability. It is only for the Court to determine whether to maintain conviction and sentence. The Applicant ought to pay further compensation if he has to avoid the sentence. 10.Since this is a case of a commercial transaction, it would be unjust to simpliciter uphold the conviction, correct though it be, if the Applicant chooses to further compensate the complainant at the reasonable rate of 6% per annum mentioned above. The Applicant is willing to pay a further sum of Rs.1 Lakh, (which represents interest at a little more than 6% per annum) on the amount remaining unpaid to the complainant within 4 weeks from today. If that amount is paid, the conviction of the Applicant shall be set aside. If that amount is not paid, the Applicant shall surrender before the trial Court and be taken in custody. 5 11.Both the Revision Applications are disposed of accordingly. [SMT.ROSHAN DALVI, J.]