WP 189/16 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 189/2016
Shrikant Vithal Yerpude,
aged 53 years, Occu: Contractor,
R/o Subhash Ward, Andhalgaon,
Tq. Mohadi, District Bhandara. PETITIONER
.....VERSUS.....
M/s Mahavir Trading Co. through
Prop. Chandmal Dagduji Sathawane,
aged 48 yrs, Occu. Business,
R/o Gandhi ward, Warthi,
Tahsil Mohadi, District Bhandara. RESPONDE
NT
Mr. A.R. Kaplay, counsel for the petitioner.
None for the respondent.
CORAM : REVATI MOHITE DERE, J.
DATE : 17 TH NOVEMBER, 2017.
ORAL JUDGMENT
Heard the learned counsel for the petitioner. Despite
adjourning the matter on several occasions, none appears for the respondent.
2. By this petition, the petitioner has impugned the judgment and order dated 04.07.2015, passed by the learned Sessions Judge, Bhandara in Criminal Revision Application No.38/2013, by which the learned Sessions Judge was pleased to allow the respondent's revision application. By the impugned judgment and order, the learned Sessions Judge set aside the judgment dated 30.05.2013 passed by the trial Court and remanded the matter back to the trial Court for re-hearing the parties on the point of sentence.
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WP 189/16 2 Judgment
3. Mr. A.R. Kaplay, learned counsel for the petitioner submits that the learned Sessions Judge, Bhandara had clearly erred in law by setting aside the judgment of the trial Court and remanding the matter back to the trial Court for re-hearing the parties on the point of sentence, in the peculiar facts of the case. He submitted that after the petitioner was convicted by the trial Court vide judgment and order dated 30.05.2013, the petitioner had deposited the sum of Rs.1,05,000/- as directed by the trial Court. He submitted that the said amount was also withdrawn by the respondent-complainant on 07.08.2013 and as such, the learned Judge ought not to have entertained the revision application of the respondent-complainant, much less, passed the impugned order dated 04.07.2015. Learned counsel for the petitioner relied on the judgment of the Apex Court in the case of M/s Meters and Instruments Private Limited & Another Versus Kanchan Mehta, reported in 2017(10) TMI 218, in support of his submissions. Learned counsel submits that the revision itself was not maintainable and relied on certain judgments of the Hon'ble Apex Court in support thereof. He submitted that the learned Judge could not have entertained the revision application preferred by the respondent, inasmuch as, there was no glaring defect in the procedure nor any manifest error on any point of law, resulting in miscarriage of justice.
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WP 189/16 3 Judgment
4. Perused the papers. The aforesaid petition was admitted on 15.03.2017. Despite the respondent having engaged an advocate, none appeared for the respondent on several dates and even today. The respondent-complainant had filed a complaint in the Court of learned Judicial Magistrate First Class, 2nd Court, Bhandara on 01.02.2012, alleging an offence punishable under section 138 of the Negotiable Instruments Act. The petitioner-accused appeared before the learned Magistrate and after evidence was led by the respective parties, the learned Magistrate was pleased to convict the petitioner under Section 138 of the N.I. Act, vide judgment and order dated 30.05.2013. Vide the said judgment and order, the petitioner was directed to pay fine of Rs.1,05,000/-, in default to suffer S.I. for one month. Out of the said fine amount of Rs.1,05,000/-, the learned Magistrate directed that an amount of Rs.1,00,000/- be paid to the respondent-complainant as compensation under Section 357 of Cr.P.C. It appears that pursuant to the aforesaid order, the petitioner deposited a sum of Rs.5,000/- on 30.05.2013 and Rs.1,00,000/- on 14.06.2013 in the trial Court. It also appears that a sum of Rs.1,00,000/-, as directed by the order dated 30.05.2013, was withdrawn by the respondent-complainant. It appears that the respondent herein filed Criminal Revision Application No.38/2013 on 16.08.2013, i.e. after approximately eight days of withdrawing the compensation amount, and prayed for enhancement of sentence of fine ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:13:46 ::: WP 189/16 4 Judgment and sentence. Admittedly, the petitioner had not challenged the said judgment and order dated 30.05.2013 of conviction in the Sessions Court, as the petitioner had complied with the said order by depositing the fine amount of Rs.1,05,000/- in the trial Court.
5. Having perused the impugned judgment and order dated 04.07.2017 passed by the learned Sessions Judge, Bhandara, there was absolutely no justification for the learned Judge to quash and set aside the judgment and order of the trial Court and remand the matter back to the trial Court for re-hearing the parties on the point of sentence, in the peculiar facts of this case. In any case, whenever, the sentence/fine is inadequate, it is always open for the complainant to challenge the same and seek enhancement, by filing an appropriate application/appeal, in accordance with law and it is for the concerned Court to consider the same, on its own merits.
6. Accordingly, the writ petition is allowed. The impugned judgment and order dated 04.07.2015 passed by the learned Sessions Judge, Bhandara in Criminal Revision Application No.38/2013 is quashed and set aside and the said Revision Application, is restored back to its original file. The learned Sessions Judge shall hear the parties on all points, including the point of maintainability of the criminal revision ::: Uploaded on - 20/11/2017 ::: Downloaded on - 21/11/2017 01:13:46 ::: WP 189/16 5 Judgment application as well as take into consideration the facts of the case and the judgments of the Hon'ble Apex Court and shall thereafter, pass appropriate order in the said revision application. All contentions of the parties are kept open. Rule is made absolute in the aforesaid terms. The petition is accordingly disposed of.
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