revn-287-10.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 287 OF 2010 WITH CRIMINAL APPLICATION NO. 165 OF 2010 IN CRIMINAL REVISION APPLICATION NO. 287 OF 2010 1. Popular Watch Company, A partnership firm, having office at 732, Laxmi Road, Near Sonya Maruti Chowk, Pune-3 2. Mr. Zubair K. Menon 732, Laxmi Road, Near Sonya Maruti Chowk, Pune-3 .. Applicants (Orig. Accused 1 & 2) Versus 1. Mr. Pradeep Prataprao Shah R/at Pae Classic, Flat No.15, 797, Sadashiv Peth, Pune-30 .. Respondent (Orig. Complainant ) 2. The State of Maharashtra (Formal party) Mr. Uday P. warunjikar for the applicants Mr. Pradeep P.shah- Respondent No.1- in person Mr. P. S. Hingorani, APP for Respondent- State CORAM : J.H. BHATIA, J. DATE : 21st April, 2011. J U D G M E N T 1. Heard learned Advocate for the applicants who are original accused. Respondent no.1, who is original complainant, is present in person. 1 revn-287-10.sxw 2. It is the case of the complainant that the accused no.1 is a partnership firm of which accused no.2 is a partner. The accused were in financial need and on his request he had advanced hand loan of Rs. 1 lac in the year 2001. For repayment of that amount, the accused No.2 issued a cheque dated 28/5/2004 of Rs.1 lakh, drawn on the Muslim co-op. Bank Ltd, for repayment of said loan. On presentation for encashment, the cheque was dishonoured for want of sufficient fund and the intimation of the same was received by the complainant on 31/5/2004. On 16/5/2005 the complainant issued a statutory notice making demand of the cheque amount. In spite of receipt of the notice, the accused failed to make the payment within the stipulated period of 15 days. Therefore, the complainant filed a criminal case under section 138 of the Negotiable Instruments Act. 3. In response to the summons issued by the trial Court, the accused appeared and pleaded not guilty. The complainant examined himself and produced some documents in support of his case. Accused also examined himself and one more witness in support of defence that the amount was repaid but the cheque was not returned to him. 4. The trial Court convicted both the accused and directed accused no.1 to deposit amount of Rs.20,000/- to be paid to the 2 revn-287-10.sxw complainant as compensation. Accused no. 2, who was a partner of accused no.1 form, was sentenced to under go rigorous imprisonment for one year. The accused challenged the conviction and sentence by filing of an appeal before the Sessions Court. The Sessions Court modified the order of conviction and sentence and convicted the accused no.2 alone and sentenced him to suffer simple imprisonment for three months and directed him to pay Rs.20,000/- as compensation. That order is challenged in the present revision application. 5. The learned counsel for the applicants has taken me through the evidence led by the parties as well as the observations made by both the Courts below. He contended that pending the criminal case, the complainant had also filed a Summary Suit No. 79 of 2007 on the basis of same cause and the Civil Court had partly decreed the suit to the extent of payment of Rs.1 lakh being the cheque amount with future interest @ 4% per annum. The learned Advocate for the applicants contends that accused no.2 has already deposited the compensation amount with the trial Court and he has also deposited the decretal amount as per the order in the civil suit. According to him, firstly, there was no reason to reject the evidence led by the accused to show that he had repaid the loan amount and secondly, in view of repayment of the loan amount, the order of conviction and sentence of imprisonment is liable to 3 revn-287-10.sxw be quashed. 6. After perusal of the record and the evidence led by the parties, I do not find any illegality or irregularity in the proceedings before the Courts below. Accused no.2 who is partner of accused no.1 had obtained loan of Rs.1 lac from the complainant, as per the evidence of the complainant, and for repayment of that amount, he had issued a cheque in question. That cheque was dishonoured and inspite of service of statutory notice, the accused failed to make payment and therefore the complainant was required to file a complaint under section 138 of the N.I. Act. On merits, both the Courts below have given concurrent findings that the complainant had proved the payment of Rs.1 lakh as hand loan to the accused and issuance of cheque by the accused to discharge that liability. 7. Evidence of the accused himself shows that he was in need of financial assistance and, therefore, he had approached the complainant for hand loan. Besides this, the complainant produced income tax return to establish that he had even shown the amount of Rs.1 lakh given to accused as hand loan in the income tax returns. The accused examined one more witness to prove that the amount taken by him was repaid. However that witness has no personal knowledge about the same. As per the defence witnesses, the accused had also obtained loan from him 4 revn-287-10.sxw and that amount was repaid. Repayment of the loan amount taken by the accused no.2 from the defence witness has no concern with the present case. 8. It appears that the complainant had filed a summary suit for recovery of the cheque amount with interest, but the suit was partly decreed, directing payment of Rs.1 lakh with future interest @ 4% per annum. The said judgment was delivered on 29/11/2008 and the decretal amount was paid in execution proceedings from time to time, from August, 2009 till December, 2009. It appears that before the Sessions Court, it was argued on behalf of the accused that when the complainant has recovered the decretal amount, it amounts to compounding of the offence. This argument was rightly rejected by the Sessions Court. Merely because the complainant had filed a Civil Suit and the decree was passed, the complainant cannot be debarred from prosecuting the criminal proceedings against the accused. Legislature has provided two remedies in case of bouncing of a cheque. On Civil side, the payee can claim the amount of cheque with interest and at the same time, he can also prosecute the accused under section 138 of the N. I. Act. Section 138 tried to inculcate certain disciplines, reliability and respectability in respect of negotiable instruments, particularly the cheques. As the cheque was dishonoured for want of sufficient fund, and in spite of service of a statutory notice the accused failed to make 5 revn-287-10.sxw payment at his own peril and the risk of prosecution and conviction for the offence punishable under Section 138 of the N.I. Act. 9. In the present case, it appears that the complainant had received an amount of Rs.1 lac with future interest thereon @ 4% per annum as per the decree passed in the Civil Suit. It is to be noted that the accused had used the money since the year 2001. The complainant has not been fully compensated. The trial Courts, in criminal proceedings, awarded compensation of Rs. 20,000/- while imposing rigorous imprisonment for one year but the Sessions Court took lenient view and reduced the sentence to simple imprisonment for three months. 10. Taking into consideration the facts and circumstances of the case, I do not find any illegality or irregularities either in the proceedings or in the sentence awarded by the Sessions Court. Therefore, I do not see any reason to interfere in the impugned order. 11. The revision application stand dismissed. The applicant- accused no.2 had deposited the amount of Rs.30,0000/- in this Court to show his bonafide. He will be at liberty to withdraw the said amount. The applicant- Accused No.2, who is on bail, had already undergone sentence for 14 days. He shall surrender 6 revn-287-10.sxw before the trial Court within two weeks from the date of this order to under go the remaining period of sentence. 12. In view of this order, Criminal Application No. 165 of 2010 does not survive and it is accordingly disposed of. 13. At this stage, the learned counsel for the applicant seeks stay to this order and prays for continuation of bail for further period of eight weeks. I do not see any valid reason for the same and, therefore, his request is turned down. ( J.H. BHATIA, J. ) 7