1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION NO. 2721/2007 NGDA Services ...vs... M/s. Kuldeep Electronic and anr. -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- CORAM: R. V. MORE, J. DATED : 12 th June, 2008 1. Heard Ms. Dewani, learned counsel for the applicant and Mr. Yengal, learned A.P.P. for non applicant No. 2. None for non applicant No. 1, though served. 2. The criminal application is filed challenging order dated 06.07.2007 below Exh.-10 passed by 12th Ad hoc Additional District Judge, Nagpur in Misc. Criminal Appeal No. 200/2006 thereby rejecting applicant's application to withdraw the amount of compensation. The applicant is a registered Partnership Firm. Non applicant No. 1 issued cheque for an amount of Rs. 45,810/- in favour of the applicant, which came to be dishonoured for the reason of 'Insufficiency of Funds'. After issuance of legal notice, complaint was filed by the applicant against non applicant No. 1 in the Court of Judicial Magistrate 2 First Class, under Section 138 of the Negotiable Instruments Act. The learned Magistrate, by his order dated 11.07.2006 convicted non applicant No. 1 for an offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to suffer Simple Imprisonment for one years. Non applicant No. 1 was also directed to pay an amount of Rs. 15,000/- to the applicant/complainant towards the compensation and in default of payment of compensation to suffer further simple imprisonment for 15 days. 3. Being aggrieved thereby, non applicant No.1 filed Misc. Civil Appeal No. 200/2006. Non applicant No.1 deposited an amount of Rs. 2000/- on 11.07.2006 and Rs.5,500/- on 11.09.2006 as condition precedent for suspending the sentence. 4. The applicant, thereafter, filed application at Exh.-10 for withdrawal of Rs. 7,500/-. This application came to be opposed by non applicant No. 1 and the lower 3 appellate Court by the order impugned rejected the applicant's application. 5. After hearing learned counsel for respective parties, I find merit in the application. Perusal of order of the Magistrate reveals that non applicant No. 1-accused was directed to pay amount of Rs. 15,000/- to the applicant as compensation. An amount of Rs.7,500/- which is deposited by non applicant No. 1 in the lower appellate court was part amount of compensation and the same was deposited in pursuance of the order of the lower appellate Court granting suspension of sentence. The Hon'ble Apex Court in Dilip S. Dahanukar ..vs.. Kotak Mahindra Co. Ltd. and another; (2007) 6 Supreme Court Cases 528 in similar circumstances directed the appellant therein to deposit a sum of Rs. 1,00,000/- within a period of four weeks and allowed the respondents therein to withdraw the same. 6. In my view, there is no reason as to why the 4 applicant should not be allowed to withdraw the amount deposited by non applicant No. 1. Interest of the non applicants can be protected by allowing the applicant to withdraw amount, subject to final outcome of the Misc. Civil Appeal pending before the Ad hoc Additional Sessions Judge. 7. In the result, I dispose of the application by passing following order. (i) Order dated 06.07.2007 passed by learned 12th Ad hoc Additional District & Sessions Judge, Nagpur in Misc. Cr. Appeal No. 200/2006 is hereby quashed and set aside and applicant's application at Exh.-10 is allowed. (ii) The applicant is allowed to withdraw an amount of Rs. 7,500/- deposited by non applicant No. 1 in the aforesaid Misc. Civil Appeal No. 200/2006, subject to final outcome of the appeal. JUDGE kahale