1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL REVISION APPLICATION NO.218 OF 2006 Shri Pandurang Vithoba Gaware : Applicant (Orig. Accused) V/s. Dr.Vishwas Laxminarayan Soni & Anr. : Respondents .... Mr.Umesh Mankapure for the applicant. None appears for the respondent no.1. Mr.K.V. Saste, Addl. Public Prosecutor for the State. .... CORAM : B.R. GAVAI, J. DATE : MARCH 18, 2010. P.C.: By this Revision Application, the applicant challenges the order dated 24.3.2003 passed by the learned Judicial Magistrate, First Class, convicting the applicant-accused for the offence punishable under section 138 of the Negotiable Instruments Act and sentencing him to suffer S.I. for one month and to pay a fine of Rs.5,000/- and the order passed by the learned Addl. Sessions Judge, Nasik, dated 27.12.2005 partly allowing the appeal thereby maintaining the order of conviction, however sentencing him to pay a fine of Rs.3,000/-. 2 2. Though duly served, none appears for the respondent no.1. 3. The complainant, who is a medical practitioner, had filed a complaint alleging that one Pandurang was admitted in the hospital on 15.10.1998 who was discharged after some test. It is the complainant’s case that again on 19.10.1998 the said Pandurang was admitted and was hospitalised till 29.10.1998. According to the complainant, the patient insisted for discharge and, therefore, though the bill was for Rs.8,500/-, he gave a concession of Rs.1,000/- and asked the relatives of the said patient to pay Rs.7,500/-. According to the complainant, an amount of Rs.6,000/- was paid in cash and since the relatives, including the accused did not have the remaining amount, the applicant gave a cheque for Rs.1,500/-. According to the complainant, the said cheque was presented to the Bank. Since the said cheque was dishonoured, notice under section 138 was issued to the applicant. On non-compliance with the said notice, the complaint came to be filed. 4. The learned trial Court convicted the applicant-accused and sentenced him to suffer S.I. for a period of one month and a fine of Rs.5,000/-. Out of the said mount of Rs.5,000/-, Rs.3,000/- was to be paid to the complainant. The learned Sessions Judge, in appeal, partly allowed the same and sentenced him to pay fine of Rs.3,000/-. Out of the 3 said amount, Rs.3,000/- was to be paid by way of compensation to the complainant and the remaining Rs.2,000/- was to be given to the applicant. 5. From the record, it can be noticed clearly that it has been the defence of the applicant that in pursuance of the notice issued under section 138, the amount was paid by the brother-in-law of the applicant. It is also the case of the applicant that since the relatives of the deceased Pandurang had filed a criminal complaint as well as complaint before the Consumer Forum against the present complainant, he had refused to compound the present proceedings. 6. From the evidence of P.W.1 complainant, it can be clearly seen that the said witness has stated that on 29.10.1998, the relatives of Pandurang insisted for his discharge and at the time of discharge, though the bill was Rs.8,500/-, he gave concession of Rs.1,000/- and demanded Rs.7,500/-. He further stated in his deposition that the relatives gave an amount of Rs.6,000/-. However, since they did not have the amount of Rs.1,500/-, the present applicant gave a cheque for Rs.1,500/-. He further stated that the said cheque was signed by the present applicant in the presence of the complainant. It can further be seen that in the cross- examination, P.W.9 has admitted regarding the criminal case of the 4 complainant in the Consumer Forum being filed against the complainant. 7. From the perusal of the evidence, it can thus be seen that the cheque which was given by the present applicant to the complainant was not towards the treatment given to the present applicant. It can further be seen that in cross-examination, the complainant has admitted regarding the criminal case and the complaint before the Consumer Forum being filed against him. The applicant has specifically stated in his statement under section 313 that the present case was filed by the complainant since his brother-in-law has filed a criminal case against P.W.1. 8. In view of this position, it can be seen that the defence which is raised by the present applicant is a plausible defence. 9. In that view of the matter, I am inclined to allow the revision. The order dated 24.3.2003 passed by the learned Judicial Magistrate, First Class and the order passed by the learned Addl. Sessions Judge, Nasik, dated 27.12.2005 are quashed and set aside. The applicant-accused is acquitted of the offence charged. Bail bond, if any, shall stand cancelled. Order accordingly. B. R. GAVAI, J.