Bombay High Court
Shivanand Bhoja Shetty And Anr vs State Of Maharashtra on 7 February, 2024
Author: Prakash D. Naik
Bench: Prakash D. Naik
2024:BHC-AS:6412-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (STAMP) NO.2092 OF 2024
Shivanand Bhoja Shetty and another Petitioners
versus
The State of Maharashtra Respondent
Mr.Chaitanya Pendse i/by Ms.Ilsa Shaikh with Mr.Kunal Kamble,
Advocate for Petitioner.
Mr.Jehangir Khajotia withMs.Minal Parab, Advocate for Respondent
no.2.
Mr.Y.Y.Dabake, APP, for State.
CORAM : PRAKASH D. NAIK, J.
DATE : 7th February 2024
PC :
1. Petitioners were tried for the offence u/s.138 of Negotiable Instruments Act vide C.C No.70001282/SS/2018. Vide judgment and order dated 25th August 2023 Petitioners were convicted for the offence u/s.138 of Negotiable Instruments Act (`N.I.Act') and sentenced to suffer simple imprisonment till rising of the Court and to pay fine of Rs.1,30,00,000/- within two months.
2. Petitioners challenged the judgment and order dated 25 th August 2023 before Sessions Court by preferring Criminal Appeal. Petitioners also preferred an application for suspension of sentence during pendency of appeal. Vide order dated 12 th October 2023 learned Session Judge allowed the application for suspension of sentence and sentence of conviction dated 25th August 2023 was suspended till final disposal of Criminal Appeal No.674 of 2023 subject to condition that Petitioners shall deposit 20% of the fine amount which comes to Rs.26,00,000/-.
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3. Petitioners preferred application below Exhibit-4 for exempting them from depositing 20% amount as directed by the Court u/s.148 of N.I.Act. Learned Magistrate by order dated 9 th January 2024 rejected the said application. On the same day the Petitioners were present before Court. Application for extension of time to deposit fine amount was preferred by them. Prayer was made to comply with condition of payment was made. Learned counsel for Petitioners submitted that Petitioners will comply the order within 30 days from the date of passing the order. Learned Sessions Judge granted time by way of last chance and extended the time to deposit till 8th February 2024.
4. Learned counsel for Petitioners submitted that financial condition of Petitioners is poor. They are not in a position to deposit the amount as directed by Sessions Court in accordance with Section 148 of N.I.Act. If the accused makes out exceptional case, the Court is empowered to waive deposit of 20% amount. Petitioners have moved the Sessions Court by preferring application and made out exceptional case for seeking waiver of payment of fine in accordance with Section 148 of N.I.Act. The bona fides of Petitioners need to be taken into consideration. During pendency of trial Petitioners had parted Rs.30,00,000/- to the complainant. Petitioners were being prosecuted as Director of accused no.1. All of them were convicted. Proceedings were initiated against accused no.1 under Insolvency and Bankruptcy Act. The company was declared insolvent by order dated 26th February 2020. Learned Magistrate while convicting Petitioners was conscious of the financial constraints of Petitioners which is apparent from the observations made by Trial Court in paragraph 19 of the judgment of conviction. Petitioner nos.1 and 3 are senior citizens. Since the company (accused no.1) is declared ::: Uploaded on - 09/02/2024 ::: Downloaded on - 25/02/2024 07:52:32 ::: 3 of 5 27.WP(St).2092.2024.doc insolvent, Petitioners who are Directors of the company and who have no capacity to deposit the fine amount, may not be directed to pay the fine. After rejection of application for waiver of payment of fine, the Petitioners had requested the Court that time to deposit may be extended and Petitioners would deposit the amount within stipulated time. The request was made in exceptional circumstances. Petitioners were present before the Court and in the event time was not extended, Petitioners would have been taken into custody. Reliance is placed on the decision of Hon'ble Supreme Court in the case of Jamboo Bhandari Vs. Madhya Pradesh State Industrial Development Corpn. Ltd and others (2023)10-SCC-446.
5. Learned advocate for Respondent vehemently opposed the relief sought in this petition. It is submitted that Petitioners are not facing financial constraints. The Appellate Court has directed 20% fine amount to be deposited by Petitioners. 20% amount is minimum amount prescribed u/s.148 of N.I.Act. Petitioners have initiated several proceedings before the Courts. Petitioners had filed revision applications before the Court of Session. Petitioners had filed criminal writ petitions before this Court and two special leave petitions before Hon'ble Supreme Court which indicate that Petitioners could not be in financial constraints. Petitioners have not made any exceptional case for 100% waiver of fine amount. Petitioners had agreed to deposit the amount within stipulated time and sought extension of time to deposit the amount of fine. Reliance is placed on the decision of Hon'ble Supreme Court in the case of Surinder Singh Deswal @ Colonel S.S.Deswal Vs Virender Gandhi (2019)11-SCC-341.
6. Petitioners were prosecuted along with accused no.1 for ::: Uploaded on - 09/02/2024 ::: Downloaded on - 25/02/2024 07:52:32 ::: 4 of 5 27.WP(St).2092.2024.doc offence u/s.138 of N.I.Act. The amount was of Rs.1,60,00,000/-. The cheque was dishonoured on 31 st January 2018. Apparently during pendency of trial amount of Rs.30,00,000/- was paid to the complainant. Thus, liability of Rs.1,30,00,000/- was under
consideration. The Trial Court has convicted Petitioners for the offence u/s.138 of N.I.Act and taken liberal approach while imposing sentence. Accused were directed to suffer imprisonment till rising of Court and further directed to pay fine of Rs.1,30,00,000/-. The Sessions Court suspended sentence vide judgment and order dated 12th October 2023 on condition that fine of 20% be deposited in the Court. The Court also granted 60 days to deposit said amount. Thereafter Petitioners preferred application seeking waiver of payment of fine on 22nd November 2023. Learned Sessions Judge rejected said application vide order dated 9th January 2024. While passing said order it was observed that Petitioners are attempting to review the order dated 12th October 2023 and application is not maintainable. There is no merit in the application. It was urged on behalf of Petitioners that time to deposit may be extended to comply the condition of order of suspension of sentence. It was also urged that Petitioners will comply the order within 30 days. Learned Judge granted time till 8th February 2024. Petitioners have preferred this petition before this Court on 23 rd January 2024 challenging the orders passed by Sessions Court. The contention of Petitioners that company was declared insolvent cannot be considered for granting waiver for payment of fine. Assuming that proceedings are initiated against Petitioner company, the Directors cannot be absolved from liability. Even otherwise, Petitioners have not made out any exceptional circumstance for granting waiver in payment of fine u/s.148 of N.I.Act. After seeking time to deposit amount the ::: Uploaded on - 09/02/2024 ::: Downloaded on - 25/02/2024 07:52:32 :::
5 of 5 27.WP(St).2092.2024.doc Petitioners have moved this Court to challenge the said order. The petition lacks bona fides and devoid of merits. The writ petition is dismissed.
7. At this stage learned advocate for Petitioners seeks stay of order for two weeks. The request is rejected.
(PRAKASH D. NAIK, J.) MST ::: Uploaded on - 09/02/2024 ::: Downloaded on - 25/02/2024 07:52:32 :::