Bombay High Court
Shrikant Vithal Yerpude vs M/S Mahavir Trading Co. Thr. Prop. ... on 15 November, 2017
Bench: R.P. Mohite-Dere
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.
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withdrawn by the respondent-complainant on 07.08.2013 and as such,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.
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
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
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.
JUDGE
APTE
