ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL (LODGING) NO.193 OF 2008 (LODGING) NO.193 OF 2008 (LODGING) NO.193 OF 2008 Zainuddin Kasamali Sutarwala ...Appellant. Versus Mr.Dilip D. Patil ...Respondent. Mr. Shamim i/by M/s. Shamim & Co. for the Appellant. None for the Respondent. CORAM CORAM CORAM : S.B.MHASE & : S.B.MHASE & : S.B.MHASE & R.V.MORE, R.V.MORE, R.V.MORE, JJ. JJ. JJ. DATED DATED DATED : 14TH AUGUST, 2008 : 14TH AUGUST, 2008 : 14TH AUGUST, 2008. P.C. P.C. P.C. . Heard the learned counsel appearing for the Appellant. 2. The Plaintiff’s Summary Suit for recovery of Rs.5,00,000/- (Rupees five lacs only) has been dismissed by the Single Judge. The cheque of Rs.5,00,000/- which was given by the Respondent bounced and therefore, proceedings under Section 138 of the Negotiable Instruments Act-1881 were initiated by the Appellant. In the proceedings under Section 138 of the Negotiable Instruments Act-1881, the Respondent was convicted and was sentenced to fine of Rs.5,25,000/-. The Magistrate further directed that ( 2 ) out of the said fine amount, the amount of Rs.5,00,000/- be paid to the Plaintiff-Appellant by way of compensation. Accordingly, the amount of Rs.5,00,000/- has been paid to the Appellant on 31/10/2006. 3. It appears that after the order of conviction and having received the amount of fine of Rs.5,00,000/-, the Plaintiff- Appellant filed present summary Suit before the learned Single Judge of this Court on 11th September, 2006, for recovery of an amount of Rs.5,00,000/- with interest on the said amount. The learned Single Judge has found that the principal amount of Rs.5,00,000/- has been paid to the Appellant in the proceedings under Section 138 of the Negotiable Instruments Act-1881 and therefore, the only claim which survives for consideration is that of interest. However, while considering the claim for interest, the learned Single Judge has found that the Appellant has tried to suppress the fact of receipt of an amount of Rs.5,00,000/-. His affidavit is referred to in paragraph No.3 wherein the Appellant has stated thus:- . "I say that the amount paid by the Defendant is the amount paid towards ( 3 ) the penalty/fine, for the Criminal offence committed by him, and that the Defendant is still liable to pay his entire claim of Rs.5,00,000/- to the Plaintiff, and therefore I have filed the present Summary Suit No.2763 of 2006, before this Honourable Court..." 4. So the Appellant has thus tried to mislead this Court by showing that Rs.5,25000/- is an amount of penalty and as if nothing has been paid to him, under Section 138 of the Negotiable Instruments Act-1881. By the additional affidavit the Appellant has tried to impress that there is full liability against the respondent viz. Rs.5,00,000/- alongwith interest. This is a fraudulent attempt on the part of the appellant. 5. We agree with the findings of the learned Single Judge and do not see any reason to interfere. The Appeal is rejected. (R.V.MORE, (R.V.MORE, (R.V.MORE, J.) J.) J.) (S.B.MHASE, (S.B.MHASE, (S.B.MHASE, J.) J.) J.)