Bombay High Court
Ashok Jain vs State Of Maharashtra And Anr on 30 August, 2023
Bench: S. V. Kotwal
2023:BHC-AS:24873
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.16003 OF 2023
Ashok Jain ...Petitioner
Versus
The State of Maharashtra & Anr ...Respondents
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Mr. Chandrakant Talekar, i/b Jainish Jain, Advocate for Petitioner.
Mr. Arfan Sait, APP for State/Respondent No.1.
Mr. Sohanraj Chopda, Advocate for Respondent No.1.
Mr. Mahendra Choudhary, Respondent No.2 present in-person.
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CORAM : SARANG V. KOTWAL, J.
DATE : 30th AUGUST 2023
PC :
1. Heard learned Counsel for both the parties.
2. Though this is a Writ Petition, considering the relief
claimed in this Petition, the proper remedy would be a Criminal
Revision Application. Therefore, learned Counsel for the Petitioner
seeks permission to convert this Writ Petition into Criminal
Revision Application.
3. The Permission is granted.
4. The office shall take steps for converting this Writ
Ashwini V
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Petition into Criminal Revision Application. Considering the
urgency, I am deciding this matter at this stage itself.
5. The Applicant is the original Accused in case No. C.C.
No.194/SS/2010 before the Court of Metropolitan Magistrate 14 th
Court, Girgaon, Mumbai. The case was initiated by the father of
the Respondent No.2 for commission of offence under Section 138
of Negotiable Instruments Act, 1881. The allegations were that
the Complainant had sold non ferrous metals vide invoice No.5381
dated 19th February 2010 for Rs.75,705/- to the Applicant. For
payment of those goods a cheque bearing No.036749 dated 22 nd
February 2010 drawn on Union Bank of India, Bhuleshwar branch
was issued in favour of the Complainant. That cheque was
dishonoured and after following the due procedure, the complaint
was lodged. The trial was conducted. At the end of the trial, the
learned Magistrate vide his judgment and order dated 17 th
September 2018 convicted the Applicant and sentenced him to
suffer simple imprisonment for two months. The Applicant was
directed to pay an amount of Rs.1,13,557/- to the Complainant as
compensation under Section 357(3) of Criminal Procedure Code,
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1973.
6. The Applicant had challenged the order of conviction
and sentence vide Criminal Appeal No.6 of 2019 before the Court
of Sessions, Greater Bombay. The said Appeal was dismissed by
the learned Sessions Judge, Greater Bombay vide his judgment
and order dated 23rd August 2023. The Applicant was taken into
custody and as of today, he is still in custody.
7. Learned Counsel for the Applicant submitted that during
the pendency of the Appeal, the original Complainant passed away
and instead of him, his son Mahendra Choudhary was brought on
record. He is also the Respondent No.2 in the present proceeding.
8. Learned Counsel for the Applicant states that the parties
have settled the matter and he prays for permission for
compounding of offence with the leave of the court. Learned
Counsel for the Respondent No.2 who is substituted for the
original Complainant, submits that the matter is settled between
the parties. He tendered an affidavit affirmed by the Respondent
No.2, wherein, it is mentioned that the Applicant has paid an
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amount of Rs.1,25,000/- towards full and final settlement. In
paragraph 4 of the affidavit, the Respondent No.2 has stated that
the present Petition be allowed.
9. The Respondent No.2 is present in the Court and is
identified by his learned Counsel. Considering the settlement
between the parties, the offence can be permitted to be
compounded. However, since the matter has reached this Court
after the trial and Appeal, some cost is required to be imposed on
the Accused. The Accused at present is in custody. Therefore, as
of today, he is in custody for about seven days. I am taking this
factor into consideration in deciding quantum of the cost.
Considering the overall circumstances, the Applicant can be
directed to pay Rs.15,000/- to the Legal Services Authority of this
Court.
10. Hence, the following order:
ORDER
i) The offence is allowed to be compounded. The
judgment and order dated 17th September 2018
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passed by the Metropolitan Magistrate 14 th Court,
Girgaon, Mumbai in C.C. No.194/SS/2010 and
the order passed by the Sessions Judge, Greater
Bombay on 23rd August 2023 in Criminal Appeal
No.6 of 2019, are set aside.
ii) Permission is granted for compounding of offence.
Consequently, the Applicant is acquitted.
iii) The Applicant is in jail and is directed to be
released, if not required in any other case, after
he deposits the cost of Rs.15,000/- with the Legal
Services Authority of this Court.
iv) With these directions, the Revision Application is
disposed of.
(SARANG V. KOTWAL, J.)
