Bombay High Court
Amol Kailas Shinde vs Riya Flower, Through Its ... on 17 March, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.20 OF 2021
WITH
APPLN/345/2021 IN REVN/20/2021
AMOL S/O KAILAS SHINDE
VERSUS
RIYA FLOWER THROUGH ITS PROPRIETOR
...
Advocate for Applicant : Mr. S. R. Bodade
Advocate for Respondent : Mr. S. A. Ambad.
...
WITH
APPLN/756/2021 IN REVN/20/2021
MEENA W/O KAILAS SHINDE
VERSUS
RIYA FLOWER THROUGH ITS PROPRIETOR
...
Advocate for Applicant : Mr. S. R. Bodade
Advocate for Respondent : Mr. S. A. Ambad
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 17-03-2021.
ORDER :
1. Learned advocate for petitioner/original accused is present.
Respondent along with his advocate is also present. Heard both sides.
2. The original complainant has filed affidavit in which she has
stated that, she has received the cheque amount and she is ready to
compound the offence. The complainant had filed complaint i.e.
Summary Criminal Case No.5517 of 2012 against the present
petitioner/original accused contending that the petitioner has
2 CriRevn 20-2021
committed offence punishable under Section 138 of the Negotiable
Instruments Act. After trial, the learned Judicial Magistrate, First
Class, 12th Court, Aurangabad has convicted the present petitioner
on 26-02-2015. The petitioner/ original accused was directed to
suffer rigorous imprisonment for six months and to pay
compensation of Rs.3,50,000/-.
3. The present petitioner/ original accused had filed Criminal
Appeal No.59 of 2015 before Additional Sessions Judge,
Aurangabad. The learned Additional Sessions Judge, after hearing
both sides, has dismissed the appeal on 29-01-2021, hence the
present revision petition is filed.
4. The learned advocate for the petitioner/ original accused
submits that, the petitioner/ original accused at present is in jail.
5. The cheque amount of the disputed cheque was Rs.2,00,000/-
and the learned Magistrate had directed to pay compensation of
amount @ Rs.3,50,000/- under Section 357 (3) of the Code of
Criminal Procedure. Now the respondent/original complainant has
stated in her affidavit that, she has received Rs.3,50,000/- from the
petitioner. When the interest of the complainant has been mitigated
and, she, wants to compound the offence under Section 320 of the
Code of Criminal procedure, it can be so allowed under Sub-section
(6) of Section 320 of the Code of Criminal procedure.
6. It will not be out of place to mention here that, the offence
punishable under Section 138 of the Negotiable Instruments Act is
compoundable. Further, in view of the decision in, Damodhar Damodar
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S.Prabhu v. Sayed Babalal H., reported in 2010 (5) SCC 663, wherein the
guidelines have been issued in paragraph No.21 of the Judgment. It
has been proposed and directed that,
"(b) If the accused does not make an application for compounding as
aforesaid, then if an application for compounding is made before the
Magistrate at a subsequent stage, compounding can be allowed subject
to the condition that the accused will be required to pay 10% of the
cheque amount to be deposited as a condition for compounding with the
Legal Services Authority, or such authority as the Court deems fit."
And in
"(c) Similarly, if the application for compounding is made before the
Sessions Court or a High Court in revision or appeal, such
compounding may be allowed on the condition that the accused pays
15% of the cheque amount by way of costs."
7. Taking into consideration these guidelines while allowing the
complainant to compound the ofence, on last date the accused was
orally directed to be directed to pay amount of Rs.30,000/- to the
High Court Legal Services Sub-Committee, Aurangabad and he has
paid it on 16-03-2021. With these directions the complainant is
allowed to compound the ofence. Hence, following order.
ORDER
(1) The conviction awarded by Judicial Magistrate, First
Class, Court No.12, Aurangabad, in Summary Criminal
Case No.5517 of 2012 dated 26-02-2015, and the
confirmation of the same by learned Additional Sessions
Judge, Aurangabad in Criminal Appeal No.59 of 2015
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dated 29-01-2021, is hereby set aside.
(2) The accused / petitioner Amol s/o Kailas Shinde
stands acquitted of the ofence punishable under Section
138 of the Negotiable Instruments Act. He be set at
liberty forthwith.
(3) Registrar (Judicial) to issue directions to
Superintendent, Harsul Jail, Aurangabad.
(4) Accordingly Criminal Revision Application No.20 of
2021 and Criminal Application No.345 of 2021, and
Criminal Application No.756 of 2021 stand disposed of
accordingly.
(5) The amount deposited by the original accused
before the learned Trial Court and / or Appellate Court, is
allowed to be withdrawn as per their terms of
settlement.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
