West vs Ashok Underlal
2010 Latest Caselaw 284 Bom

                                       1
                                                            (CRA 146 of 2001)

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                      
                CRIMINAL APPELLATE JURISDICTION
          CRIMINAL REVISION APPLICATION NO.146 OF 2001




                                              
     Parmanand Aggarwal           )
     503A, "CHANYAK", Mahavir     )
     Nagar, Dahanuwadi, Kandivali)




                                             
     (West), Mumbai - 400 067     )..Applicant
          Versus
     1. Ashok Underlal            )
       1204, Stock Exchange       )




                                  
       Tower, Dalal Street,       )
       Mumbai - 400 023  ig       )

     2. The State of Maharashtra )..Respondents
     -----

None for the Applicant Mr. Ashok Wanwari for Respondent No.1 Mrs. M.R. Tidake-APP for State

-----

CORAM: V.M. KANADE J. DATED: 13TH DECEMBER, 2010

ORAL JUDGMENT

1. Heard the learned counsel appearing on behalf of the Respondent No.1.

2. Initially the matter came up for hearing on

24.11.2010 and it was adjourned by one week and thereafter, it was adjourned by one week and the learned counsel for the Applicant was told that no

(CRA 146 of 2001)

further adjournment will be granted. In spite of that,

none appeared on behalf of the Applicant on 1st

December, 2010. Thereafter , as a last chance matter was kept on 3.12.2010. After the said order was passed, the learned counsel for the Applicant appeared in the

matter and she stated that she would appear on 10.12.2010. In fact, on 24th November, 2010 itself I had

with her assistance gone through the judgments and orders passed by both the Lower Courts, she had made

her submissions. Today, however, she is not present in the Court. I have heard the learned counsel appearing on

behalf of the Respondent No.1 at length.

3. The present revision application is filed challenging the judgment and order passed by the Metropolitan

Magistrate, 33rd Court at Bellard Pier, Mumbai who was pleased to convict the accused for the offence

punishable under section 138 of the Negotiable Instruments Act and sentenced to suffer S.I. for six months and to pay fine of Rs.49,750/- and, in default, to

suffer S.I. for one month. He directed that an amount of Rs.25,875/- be given to the Complainant by way of compensation. Thereafter he challenged this order before the Sessions Court. The Sessions Court confirmed the

(CRA 146 of 2001)

order of the Trial Court. However, had altered the

sentence and reduced the amount of compensation to

Rs.5,000/- and, in default, to further S.I. for fifteen days. A direction was given to pay this amount to the complainant. The Respondent No.1 filed a complaint in

which he alleged that he is the broker and the Applicant

-Original Accused had purchased shares on or about 6th

August, 1993. A contract note was given for the said transaction and thereafter, a cheque for an amount of

Rs.24,875/- was issued by the accused in discharge of the said liability. The said cheque, however, was

dishonoured after the complainant presented it in his bank. After the demand statutory notice was served on

the applicant and upon non-payment of the said amount, the complaint was lodged under section 138 of

the Negotiable Instruments Act.

4. The complainant examined himself and PW-2, both the bank officers. The accused examined one witness. The Trial Court on the basis of the evidence adduced by

the parties, convicted the accused. The Sessions Court in appeal, had confirmed the findings though it reduced the amount of compensation.

(CRA 146 of 2001)

5. It was urged by the learned counsel for the

Applicant that the shares were never delivered to the

Applicant and hence, there was no question of payment of consideration. It was submitted that since the shares were not delivered, no liability arose on the part of the

Applicant to make the payment and, therefore, the blank cheque was without any consideration.

6. On the other hand, the learned counsel appearing

on behalf of the complainant submitted that the shares were purchased by the Complainant and the amount was

paid by him on behalf of the accused and, therefore, the liability had arisen. The accused had deliberately not

taken delivery of the shares. However, they did not absolve him from the liability which has arisen.

7. In my view, both the Courts below have given cogent reasons for not accepting the defence of the

accused that the blank cheque was given towards security. Hence, no case is made out for interfering with the judgments and orders passed by both the Courts

below. Criminal Revision Application is, therefore, dismissed and disposed of.

(V.M. KANADE J.)