Tapankumar S/O Pramodnath Ozha vs Shri Prabhulal Natthulal Dave
2021 Latest Caselaw 1626 Bom

Judgment

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR

        CRIMINAL REVISION APPLICATION NO.283 OF 2019

Tapankumar s/o Pramodnath Ozha,
Aged-62 years, occupation-business,
R/o-Near English School Warthi,
Tahsil-Mohadi, district - Bhandara. ..... APPLICANT.

                                :: V E R S U S ::

Shri Prabhulal Natthulal Dave,
Aged-63 years, occupation :- business,
R/o :- Gyaneshwar Nagar,
Near Railway Line, Bhandara,
Tahsil & district Bhandara          ..... NON-APPLICANT.
===================================
Shri S.K.Thengari, Counsel for the Applicant.
Shri M.M.Kalar, Counsel for the Non-applicant.
===================================

                CORAM           : V.M.DESHPANDE, J.

                DATE            : JANUARY 25, 2021

ORAL JUDGMENT

1. Heard learned counsel Shri S.K.Thengari for the

applicant and learned counsel Shri M.M.Kalar for the non-

applicant. Rule. Rule is made returnable forthwith. Heard finally

by consent of learned counsel for parties.

.....2/-

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2. By this revision application, the applicant is

challenging order dated 18.10.2019 passed by learned Additional

Sessions Judge, Bhandara below Exhibit 54 in Criminal Appeal

No.12/2016 whereby learned Judge of the Lower Appellate Court

rejected the application filed on behalf of the accused seeking

permission to join the State of Maharashtra through the Collector

as party respondent.

3. The non-applicant herein is original complainant,

whereas present applicant is an accused. The complainant filed a

complaint in the Court of learned Judicial Magistrate at Bhandara

for offence punishable under Section 138 of the Negotiable

Instruments Act. As per the complaint, the complainant and the

accused are acquainted with other since last 7-8 years. The

accused runs a business under name and style as 'Guru Datta

Enterprises. He was in need of money and, therefore, he

demanded hand loan Rs.2.00 lacs to the complainant. The said

amount was paid by the complainant on 7.4.2011. On the said day

itself, the accused executed an agreement and also issued a post

.....3/-

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dated cheque bearing No.419142 dated 4.11.2011 of the State

Bank of India with a promise that on due date of the cheque his

banker will honour the said cheque. However, when the said

cheque was deposited for its encashment on 5.11.2011, banker of

the accused returned the cheque for a reason that "Balance not

available." After a statutory Notice, when the amount was not

paid, the complaint was filed. The said complaint was registered

as Summary Criminal Case No.96/2012. The accused appeared.

Various documents were filed by the complainant and he also

examined himself and other witnesses. Similarly, the accused

examined himself as a defence witness and closed his case.

Learned Magistrate vide judgment dated 12.1.2016 found that the

accused has committed an offence punishable under Section 138 of

the Negotiable Instruments Act and, therefore, he was convicted

for the said offence and was directed to suffer two months

imprisonment simple in nature and also directed the accused to

pay Rs.4.00 lacs by way of compensation.

.....4/-

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4. Feeling aggrieved thereby, the accused filed an appeal

in the Court of learned Additional Sessions Judge at Bhandara.

The said appeal was registered as Criminal Appeal No.12/2016.

Learned Additional Sessions vide order dated 8.7.2016 suspended

the substantive jail sentence imposed upon the accused and he was

directed to furnish Bail Bonds of Rs.15000/- and was directed that

the accused shall deposit Rs.1.00 lac towards compensation. This

part was challenged by the accused before this Court by filing a

criminal revision bearing No.126/2016 and on 14.6.2017 the said

revision filed on behalf of the accused was allowed and direction to

pay Rs.1.00 lac towards compensation was quashed and the Court

below was directed to decide the appeal within a period of one

year.

5. Thereafter, the accused filed an application Exhibit 54

in Criminal Appeal No.12/2016 seeking permission to join the

State of Maharashtra through the Collector as party respondent

since State of Maharashtra, through PSO Bhandara is already

joined as respondent No.2. According to the accused, his contract

.....5/-

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with 'Sunflag Company' was terminated and he became insolvent

and, therefore, he filed an appeal against the said 'Sunflag

Company' in this Court bearing appeal stamp No.13193/2013

under order XXXIII. The accused, therefore, submitted that, the

State of Maharashtra, through the Collector is necessary party. The

said application Exhibit 54 is rejected and, therefore, this revision.

6. According to learned counsel Shri S.K.Thengari for the

applicant, the State of Maharashtra, through the Collector is

necessary party inasmuch as if the appeal of the applicant is

dismissed, the amount can be recovered only through the

Collector.

7. In my view, learned Additional Sessions Judge,

Bhandara has rightly rejected the application filed on behalf of the

accused. Filing of appeal by the applicant against 'Sunflag

Company' has nothing to do with proceedings pending on the file

of learned Additional Sessions Judge at Bhandara vide Criminal

Appeal No.12/2016 which arises because the accused was

convicted by learned Magistrate at Bhandara on the complaint filed

.....6/-

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by the complainant under Section 138 of the Negotiable

Instruments Act as the accused gave cheque in discharge of his

liability to pay amount was not honoured. Learned Magistrate

directed that if the amount of compensation is not paid, the

accused will have to undergo simple imprisonment for one month.

Application Exhibit 54 is moved only to prolong the criminal

appeal pending on the file of learned Additional Sessions Judge at

Bhandara which was expedited by this Court in criminal revision

filed by the accused.

8. In this view of the matter, there is no merit in this

revision. The criminal revision is rejected.

The criminal revision is disposed of. Rule is

discharged.

JUDGE

!! BRW !!

...../-