1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 507 OF 2009 Rupali Rajendra Salvi ... Applicant Vs. The State of Maharashtra & Ors. ... Respondents Mr. Rishi Bhuta,Advocate, for the applicant.. Ms. A.T.Javeri, APP,for respondent No.1 - State. Mr. Chetan Akerkar Advocate, for respondent No.2. CORAM: J.H.BHATIA, J. DATE : 8th June, 2010. P.C. 1. Heard the learned Counsel for the parties. Perused the impugned orders and copies of other relevant documents. 2. The respondent No.2 - complainant claimed that he had given certain shares to the applicant-accused for sale as she was working as a broker. The said shares were sold away by her to one Rajesh Shirke and were also transferred in his name. She issued a cheque No.600906 dated 6.12.2004 in favour of the respondent No.2 for an amount of Rs.1,50,000/-. The cheque was drawn on "The Maratha Mandir Co-operative Bank Ltd." According to the complainant, on 14.1.2005, he presented the cheque through his Bankers UTI Bank, Virar (West) Branch for encashment. The cheque was returned with the remark "Funds insufficient" dated 15.1.2005 from the concerned Bank. Complainant received the 2 sameon 18.1.2005. On 20.1.2005, the complainant issued a notice to the applicant-accused for making payment. The said notice sent by Registered Post A.D. was received by her. On 10.2.2005, the accused approached the Advocate for the complainant and admitted the liability to pay the amount and assured that she would make payment within short time and accordingly,she also gave a letter dated 10.2.2005 to him. Inspite of that, she did not make payment. Hence, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act on 16.3.2005. The accused pleaded not guilty. According to her, she was not involved in the transaction an the shares were transferred by the complainant to Rajesh Shirke,who did not make payment. Thereafter, the complainant had forced her to give three blank cheques. The chqeue in question is one of them. There was no legal liability on her part to pay the amount to the complainant. After hearing the evidence led by the parties, the trial Court convicted the accused and sentenced her to undergo simple imprisonment for three months and to pay compensation of Rs.1,60,000/- to the complainant. The accused preferred Criminal Appeal No.105 of 2008. The appeal was also dismissed. Hence, this Revision Application. 3. The learned Counsel for the complainant vehemently argued that 3 there was a delay in filing the complaint and, therefore, it was barred by limitation. He pointed out that the complainant in his evidence had admitted that he had issued two notices dated 14.1.2005 and 20.1.2005 about the same cheque. Incidentally, the notice dated 14.1.2005 was not produced by any of the parties. Hence its contents are not known. No evidence was placed on record about the date on which the notices were served on the accused. As the parties are local, it can be presumed that the notice could have been served on the next date after it was sent by registered post. According to the complainant, the cheque was presented on 14.1.2005 and it was dishonoured on 15.1.2005 and he got intimation of dishonour on 18.1.2005 and therefore he had issued the notice on 20.1.2005. In fact, this contention finds support from the evidence in the form of endorsement from the Bank. Therefore, naturally, notice under Section 138 could have been issued on 20.1.2005 and not on 14.1.2005. If the notice was issued on 20.1.2005, it can be presumed that it might have been served on 21.1.2005. As per the provisions of clause (3) of the proviso to Section 138, the payment may be made within 15 days from the date of service of the notice. As such, the period for making payment was upto 5.2.2005. As the payment was not made within the stipulated period, the complaint could be made within one month from the date on which cause of action arose, in view of sec. 142(b). That period would come to an end on 5.3.2005. The complaint was made on 16.3.2005. However, the proviso to 4 clause (b) of Sec. 142 makes it clear that the delay may be condoned and cognizance of complaint may be taken even beyond the prescribed period if the complainant satisfies the Court that he had sufficient cause for not making the application within the said period. In the present case, it is the contention of the complainant that after receipt of the notice, on 10.2.2005 the accused had approached his Advocate and assured to make payment within short time and that she had also given acknowledgment and a letter in writing to that effect and therefore, there was delay. It is not denied that the accused had been to the Advocate on 10.2.2005 and she had also given a letter. In view of this, I find that there was sufficient cause for delay and therefore the Court was justified in taking cognizance of the complaint even though it was beyond he prescribed period by about 10 days. 4. After perusal of the record, I find no substance in the Revision as far as the facts of the case are concerned. The learned Counsel for the applicant prays for leniency on the ground that the applicant is a woman and she may be punished with fine instead of the sentence of imprisonment. The offence under Section 138 is punishable with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. The trial Court awarded the sentence of imprisonment for three months and directed her to 5 pay amount of Rs.1,60,000/- as compensation. The learned Counsel for the accused/respondent No.2 has no objection if the sentence of imprisonment is set aside or modified. In view of the fact that the applicant is a young lady aged 30 years, in my considered opinion, no purpose will be served by sending her to jail. Therefore, to that extent, the Revision may be allowed. 5. For the aforesaid reasons, the Revision is partly allowed. While the conviction for the offence punishable under Section 138 of the Negotiable Instruments Act is maintained. The order about sentence stands modified as follows :- The accused shall undergo imprisonment till rising of the Court and shall pay compensation of Rs.1,60,000/- to the complainant. This will be inclusive of the amount due to him under the cheque. The learned Counsel informs that amount of Rs.40,000/- is already deposited before the Sessions Court and amount of Rs.60,000/- is deposited with this Court. The applicant shall deposit balance amount before the trial Court within four weeks from this day and respondent No.2 - complainant shall be allowed to withdraw the amount. (J.H.BHATIA,J.) 6