Bombay High Court
Ashok S/O Janardhan Kurekar vs Santosh S/O Vishwanathrao Khond ... on 8 August, 2017
Bench: P.N. Deshmukh
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FARAD CONTINUATION SHEET
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO.519 OF 2016.
PETITIONER : Shri Ashok Janardhan Kurekar, aged about 55
years, Occu:Service, R/o Shivaji Ward, Warora,
Distt.Chandrapur.
..VERSUS..
RESPONDENT : Shri Santosh Vishwanathrao Khond,
aged about 58 years, Occu: Agri. & Business,
R/o Kelkar Wadi, Wardha, Tq. and Distt.Wardha.
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Mr.M.Anil Kumar, Advocate for the petitioner.
None for respondent.
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CORAM : P.N. DESHMUKH, J.
DATE : 08th AUGUST, 2017.
ORAL JUDGMENT :
1. Record reveals that notice for final disposal of petition was issued to
the respondent, who though appears to be served chose to remain absent. It is
noted that no stay is passed to the proceedings pending before the learned first
Appellate Court wherein judgment of learned trial Court under Section 138 of the
Negotiable Instruments Act is under challenge.
2. By order dated 9th June, 2017, this Court has specifically observed that
none was present for respondent though served and has also further observed that
in fact even the learned trial Court has noted that respondent, who is original
accused, has deliberately avoided to attend the Court proceedings. After noting as
above, with a view to give an opportunity to respondent to defend the petition on
merits, same was adjourned as last chance. In spite of that, none present for
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respondent today. In the circumstances, heard learned counsel for
petitioner.
3. Limited prayer in this petition is to issue suitable direction to
learned Additional Sessions Judge, Wardha, hearing Criminal Appeal No.99
of 2015 to reconsider its order dated 30th January, 2016, passed below
Exh.4, directing respondent to deposit entire amount of consideration.
4. It appears to be the case of petitioner that he was owner of
agricultural land bearing No.468, Khasra No.364/1, Class-1, situated at
Tahsil Warora, Distt.Chandrapur of which, respondent, by playing fraud
upon petitioner got the sale-deed executed without making payment of full
consideration to petitioner, and as a result of it, only half of the land was
conveyed to petitioner. It is further case of petitioner that respondent
issued various cheques worth Rs.1,77,00,000/- to the petitioner towards
lawful and legally enforceable consideration against the sale price of the
land, as has been more particularly described in para no.3 of the petition. It
is further case of petitioner that respondent as such is enjoying the property
and carved out Lay-out and has even disposed of various plots out of said
piece of land, however, has failed to make payments to petitioner as the
cheques, as aforestated, have been dishonoured for want of funds in the
respondent's accounts which gave rise to filing of complaint by petitioner
under Section 138 of the Negotiable Instruments Act.
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5. From perusal of record In Summary Criminal Case N.5608 of
2014 it is found that the learned trial Court, after having considered the
facts, held that the respondent has issued the disputed cheques No.000339
towards lawful consideration, and on finding that the respondent
intentionally avoided to face the trial in spite of having knowledge of the
same and as found that respondent is in sound financial condition, convicted
respondent under Section 138 of the Negotiable Instruments Act, 1881
thereby sentencing respondent to undergo Simple Imprisonment for one year
and to pay fine of Rs.4,00,000/-, and in default of payment of fine amount,
to undergo simple imprisonment for further six months. Out of the fine
amount imposed, Rs.2,50,000/- is directed to be paid to the complainant
and Rs.1,50,000/- is directed to be paid to the Government after appeal
period is over.
6. Against above Judgment, respondent preferred appeal. The
Appellate Court suspended the sentence of imprisonment imposed upon
respondent on his making payment of 25% of amount of cheque valued for
Rs.2,00,000/- within six weeks and released him on bail.
7. Learned counsel for the petitioner, in the background of facts
involved in the present petitions, has submitted that in the appeal preferred
as abovesaid, there there is absolutely no ground for entertaining the same as
in this appeal except for making allegations against the Presiding Officer,
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respondent has not raised any legal and valid ground. In view of statements
advanced as aforesaid, on perusal of impugned judgments it is noted that
allegations are raised against learned trial Court as can be noted from paras
46, 47 of the judgment of not giving fair opportunity to respondent to defend
his case and making allegations which are uncalled for, in fact, there appears
no substance in said case of respondent in view of further contents of Paras
40 and 41 of the judgment where from, in fact, it appears that respondent
inspite of sufficient opportunity granted had not diligently defended himself
during the course of trial and the learned Magistrate by well reasoned
judgment convicted the respondent.
8. Considering the facts as aforesaid and having considered limited
relief prayed for in this petition, said is liable to be allowed by issuing
directions to learned Additional Sessions Judge, Wardha, who is seized with
appeal being Criminal Appeal No.99 of 2015, to expeditiously decide the same
according to law, preferably within period of six months from the date of
receipt of Writ of this Court.
Criminal Writ Petition is allowed. Rule is made absolute in above
terms with no order as to costs.
JUDGE
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