Bombay High Court
Harsha Paresh Bhuta vs State Of Maharashtra And Anr on 19 December, 2023
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION [STAMP] NO.23388 OF 2023
Harsha Paresh Bhuta ..... Petitioner
Versus
State of Maharashtra
and another .... Respondents
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Mr. Niranjan Mundargi, Advocate a/w. Keral Mehta, Tanmay
Bhave i/b. Shlok Parekh for the Petitioner.
Mr. Arfan Sait, APP for the Respondent-State.
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CORAM : SARANG V. KOTWAL, J.
DATE : 19th DECEMBER, 2023
P.C. :
1. The Petitioner was the original accused No.3 in
C.C. No.2470/SS/2017 before the Metropolitan Magistrate,
7th Court, Dadar, Mumbai.
2. The complaint was filed by the Respondent No.2
herein. It was the case of the complainant that the accused
company and the other accused had undertaken a
redevelopment project at Dadar. They took
Rs.1,50,00,000/- from the complainant to sell a flat to the
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Deshmane(PS)
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complainant bearing Flat No.901 situated on the 9 th floor.
The total price was fixed at Rs.6 Crores. The complainant
paid Rs.1,50,00,000/- as advance. It was agreed that if the
flat was not handed over the amount was to be returned
with the accrued interest. The building was not constructed
and the complainant did not get the flat. Therefore, some
amount was refunded, however, there was huge outstanding.
Therefore, the accused issued four cheques drawn on State
Bank of Patiala, Malad (West) Branch, Mumbai aggregating
to Rs.1,97,95,137/-. Those cheques were dishonored on
presentation resulting in filing of the complaint.
3. At the conclusion of the trial, the accused No.1
and the present Petitioner were convicted for the offence
punishable under Section 138 read with Section 141 of the
Negotiable Instruments Act. The Petitioner was sentenced to
suffer SI for one year and she along with accused No.1 were
jointly and severely directed to pay compensation of
Rs.2,38,30,000/- and in default the Petitioner was sentenced
to suffer SI for six months.
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4. Heard Mr. Niranjan Mundargi, learned counsel
for the Petitioner and Mr. Arfan Sait, learned APP for the
Respondent-State.
5. The Petitioner preferred an Appeal challenging
the judgment and order dated 14.9.2023 passed by the
learned Metropolitan Magistrate, 7th Court, Dadar, Mumbai.
In that Appeal, the Petitioner preferred an application for
suspension of sentence. The Appeal was numbered as
'Criminal Appeal No.684/2023' and the application for
suspension of sentence was numbered as 'Criminal Misc.
Application No.2086/2023', before the Sessions Court,
Greater Mumbai.
6. The learned Additional Sessions Judge vide his
order dated 25.9.2023 suspended the sentence imposed on
the Petitioner during pendency of the Appeal before that
Court, subject to the Petitioner depositing a sum of Rs.70
Lakhs within eight weeks from 25.9.2023. The amount was
directed to be deposited before the learned Metropolitan
Magistrate. While passing the order, the learned Additional
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Sessions Judge observed that without going into the merits,
he found that it would be just and proper to suspend the
sentence subject to the Petitioner depositing a sum of Rs.70
Lakhs as per Section 148 of the N.I. Act.
7. Learned counsel for the Petitioner submitted that
Section 148 of the N.I.Act provides that the Appellate Court
may order the Appellant to deposit such sum which shall be
a minimum of 20% of the compensation awarded by the
trial Court. In the present case, the minimum amount i.e.
20% of the compensation amount would come to
Rs.47,66,000/-. Therefore, directions to deposit Rs.70 Lakhs
was above the minimum amount of 20% of the
compensation amount, as prescribed under the said Section.
8. Learned counsel for the Petitioner submitted that
no reasons are given by the learned Appellate Judge for
imposing more amount than 20% of the compensation
amount. On instructions, learned counsel for the Petitioner
submitted that without prejudice to the rights and
contentions of the Petitioner raised in this Petition, the
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Petitioner is willing to deposit 20% of the compensation
amount, which comes to Rs.47,66,000/-. However, the
Petitioner needs some reasonable time to make that
payment. He further stated, on instructions, that the
Petitioner shall deposit Rs.10 Lakhs within a period of one
week from today to establish her bonafides; and thereafter
she would deposit the balance amount of Rs.37,66,000/-
within six weeks thereafter to make up the amount of
Rs.47,66,000/-.
9. Considering these submissions and to test the
bonafides of the Petitioner, some leniency can be shown to
the Petitioner till the complainant - Respondent No.2 is
heard in this Petition. It is necessary to seek his response to
the submissions made by learned counsel for the Petitioner.
Hence, the following order:
:: O R D E R :
:
i. The Petitioner is permitted to deposit Rs.10 Lakhs
before the trial Court within a period of one week
from today.
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ii. The Petitioner shall deposit the balance amount to
make up 20% of the compensation amount, within
seven weeks from today, before the trial Court.
iii. On such deposit, the order of suspension of
sentence shall continue for a period of seven weeks
from today. It is made clear that this ad-interim
protection shall continue till 6.2.2024
iv. Issue notice to the Respondent No.2, returnable on
6.2.2024.
v. Stand over to 6.2.2024.
(SARANG V. KOTWAL, J.)
Deshmane (PS)
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