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.522 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.101 of 2015 to reconsider its order dated 30 th 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.
5. From perusal of record in Summary Criminal Case N.5611
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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.003742 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.7,00,000/-, and in default of payment of fine amount, to undergo
simple imprisonment for further six months. Out of the fine amount
imposed, Rs.5,50,000/- 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.5,00,000/- 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, 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
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against learned trial Court as can be noted from paras 43, 44 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 37 and 38 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.101 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
chute
