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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.138 OF 2016.
APPLICANT: Valantine Pujara,
aged about 65 years, Occu: Business,
R/o Flat No.202, Aster "A" Wing I.C.Colony,
Road No.4, Borivali (West), Mumbai.
: VERSUS :
RESPONDENT : Amit s/o Naresh Aneja,
aged about 36 years, Occu: Business,
R/o B-47, Shastri Znagar, Chandrapur.
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Mr.R.T.Anthony, Advocate for the applicant.
Mr.A.J.Ambatkar, Advocate for the respondent.
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CORAM: P.N.DESHMUKH, J.
DATED : 19th APRIL, 2017.
ORAL JUDGMENT :
1. This matter is admitted by order of this Court dated 25th August, 2016 and hearing expedited. In the circumstances, by consent of learned counsel of both the sides, same is heard finally.
2. Challenge in this Criminal Revision is to impugned order passed in Criminal Appeal No.125 of 2014, by Additional Sessions Judge, Chandrapur, wherein appeal preferred by applicant against his conviction under Section 138 of the Negotiable Instruments Act came to be dismissed by imposing ::: Uploaded on - 26/04/2017 ::: Downloaded on - 26/04/2017 23:46:32 ::: 2 exemplary costs of Rs.10,000/-. Record reveals that by order dated 25th August, 2016 on admitting the appeal, substantive sentence imposed upon applicant came to be suspended by granting him bail on his furnishing P.R. Bond in the sum of Rs.20,000/- with one solvent surety in the like amount, on the condition that applicant shall deposit balance amount of Rs.20,50,000/-, with further directions to deposit Rs.50,000/- by 15th September, 2016 and remaining amount of Rs.20,00,000/- to be deposited in four equal installments within eight months, which would start from October, 2016.
Inspite of sufficient time granted to applicant to comply with this order, same is not complied at all and thus, this Court, without issuing any non-bailable warrant on the earlier dates, with intention to give opportunity to applicant to comply with the order, adjourned the matter. Learned counsel Shri R.T.Anthony appearing for applicant, on the earlier date has also tendered copies of E-mail received by him and reply to said correspondence given by applicant. In the E-mail, applicant has expressed his inability to pay amount as per order of this Court dated 25th August, 2016 vAPEALide which his sentence was suspended, as aforesaid.
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3. On 3rd April, 2017, a request was made on behalf of applicant seeking further time till the end of April, 2017 to make payment. Considering order of this Court, directing applicant to pay Rs.20,00,000/- in four equal instalments within eight months and as that period comes to an end by May, 2017, by order dated 3rd April, 2017 applicant's request was favourably considered, also considering his old age and was directed that applicant shall deposit Rs.10,00,000/- by 15th April, 2017 without fail and thereafter shall deposit further Rs.5,00,000/- by 15 th May, 2017, and further amount of Rs.5,00,000/- by 30th May, 2017.
4. In view of said order dated 3rd April, 2017 it was obligatory on the part of applicant to comply with this order by depositing Rs.10,00,000/- by 15th April, 2017 which amount, however, is not deposited. During the course of hearing, learned counsel for the applicant with this regard has tendered on record copy of E-mail addressed by applicant to him, in his reply to correspondence made by learned Advocate wherein applicant has expressed his inability to deposit money. Copy of E-mail is taken on record and marked as 'X' for identification.
5. In these circumstances, learned counsel for the ::: Uploaded on - 26/04/2017 ::: Downloaded on - 26/04/2017 23:46:32 ::: 4 applicant has sought further time to comply as per order dated 25th August, 2016 till the end of May, 2017 for depositing Rs.20,00,000/- contending that period of eight months as per above dated order would expire by that time and for that purpose has relied upon case of Pawan Rameshchandra Rathi ..vs.. Tarachand Ghevarchand Dhoot, reported in 2016(4) Mh.L.J.168, however, ratio in this case cannot be made applicable in the present Criminal Revision in hand, in view of the fact that in that case Appellate Court had directed petitioner therein, to deposit half of the compensation amount which was to the extent of Rs.2,00,000/-, as condition precedent for hearing appeal, and petitioner has fairly shown his willingness to deposit 1/4th amount of disputed cheque and therefore had modified its earlier order. Though in the Criminal Revision application in hand, applicant from the trial Court proceedings till date, has deposited Rs.8,00,000/-, his subsequent conducts in not comply order of this Court, particularly orders dated 25th August, 2016 and 3rd April, 2017, as aforesaid, does not entitle applicant for any further leniency. In fact, it is noted that on his sentence being suspended, applicant deliberately and in total disregard to the order of this Court flouted its order. In fact, it is pertinent to note that learned first appellate court in its judgment has noted ::: Uploaded on - 26/04/2017 ::: Downloaded on - 26/04/2017 23:46:32 ::: 5 conduct of appellant even at that stage, which can be revealed from para nos.18 to 20 of the impugned judgment and held that applicant had throughout protracted the trial and appeal by various modes adopted by him inspite of the fact that, his sentence was suspended even at that stage on conditional order with directions to applicant to cooperate as and when appeal is called for. It appears that due to such conduct of applicant, non- bailable warrant was required to be issued by the first appellate court and in that background exemplary costs of Rs.10,000/- came to be imposed and appeal came to be dismissed.
Thereafter, in the present proceedings instituted in this Court, as noted above, applicant is found to have flouted order dated 25th August, 2016 in total disregard of the same.
6. Learned counsel for the applicant, in that view of the matter, has placed reliance on the case of Surya Baksh Singh ..vs.. State of Uttar Pradesh reported in (2014)14 SCC 222, wherein the ratio laid down is that : -
"When there is willful failure of convicts to prosecute the case after getting bail or exemption from their personal appearance or fails to surrender, with sole intention to circumvent consequences of their conviction ::: Uploaded on - 26/04/2017 ::: Downloaded on - 26/04/2017 23:46:32 ::: 6 only remedy is to forthwith, proceed against such persons who stood as surety in bail granted to convict to secure presence of accused and even if this recourse fails, to dismiss the appeal exercising inherent powers under Section 482 of the Code of Criminal Procedure."
In view of ratio as above and as it appears that on suspending sentence, conditionally as applicant has flouted the condition and is enjoying the liberty, application is liable to be dismissed.
7. Even on considering this revision on merits, it appears to be the case of non-applicant/complainant that he is carrying a business of coal by name A.Aneja and Sons by purchasing it from W.C.L. and supplying it to those who have placed order for its supply with him. Applicant/accused is also indulged in similar business and had purchased coal from non-applicant/complainant who accordingly supplied coal worth Rs.24,81,520/- for which applicant made payment by issuing cheque valued of Rs.24,67,973/- which amount was settled after deduction of debit note of Rs.13,547/-. The said cheque, however, was dishonoured which fact was informed to applicant who, in turn, informed complainant to wait for some days. As such, the cheque was ::: Uploaded on - 26/04/2017 ::: Downloaded on - 26/04/2017 23:46:32 ::: 7 again deposited in the Bank, however, same was dishonored and therefore proceedings under Section 138 of the Negotiable Instruments Act came to be initiated which came to be terminated in favour of non-applicant/and the first appeal preferred was dismissed by impugned order by imposing exemplary costs on applicant as aforesaid.
8. Learned counsel for the applicant in support of present application has referred to his case as has been set out in ground No.VII of the application alleging that the Courts below had failed to appreciate that in the notice non-applicant had stated that applicant had supplied stock of coal worth Rs.2,67,973/- in total and in the cross-examination has changed his version stating that coal worth Rs.87,00,000/- was supplied to applicant. It is also contended that non-applicant had not at all mentioned in the notice or in his evidence on affidavit the date on which the coal was supplied as well as quantity of coal alleged to have been supplied nor had placed on record any delivery memo to show supply of coal or its receipt by applicant. Learned counsel for applicant thus relied upon the case of I.B.Interprises ..vs.. Konark Supply Agency reported in 2015(2) DCR 783, wherein it is held that merely because cheque is issued, same is not ::: Uploaded on - 26/04/2017 ::: Downloaded on - 26/04/2017 23:46:32 ::: 8 conclusive of fact that same was issued in discharge of debt or liability but it is necessary to be proved beyond all reasonable doubts. Considering the law relied coupled with facts involved in the present application, as reveals from paragraph nos.10 an 11 of the impugned judgment, it is found that there is sufficient martial to establish involvement of applicant for having contravention of provisions of Section 138 of the Negotiable Instruments Act. In that view of the matter, even on merits, there appears no substance in the Revision application. Same is therefore liable to be dismissed. Hence, the following order.
Criminal Revision Application is dismissed. Rule stands discharged.
Record and Proceedings be sent back forthwith to the trial Court to take necessary steps for implementation and execution of order against original accused no.1/applicant herein.
JUDGE.
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