Bombay High Court
Ramesh Kashiram Pendkalkar vs Vilas Dattaram Bhogaokar And Anr on 27 March, 2023
Bench: Amit Borkar
2023:BHC-AS:9275
28-wp-2977-2022.doc
Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2977 OF 2022
Ramesh Kashiram Pendkalkar ... Petitioner
V/s.
Vilas Dattaram Bhogaokar and Anr ... Respondents
Mr. Ujwal Agandsurve for the petitioner.
Mr. A.R. Patil, APP for the State.
CORAM : AMIT BORKAR, J.
DATED : MARCH 27, 2023
P.C.:
1. The challenge in this petition is to refusal on the part of
Session Judge to consider Miscellaneous Application No.3265 of
2019 as being not pressed.
2. The facts giving rise to calling the writ petition are as
under :-
The petitioner is complainant in a proceeding under Section
138 of the Negotiable Instruments Act, 1881. The respondent No.1
is a accused. On 21st January, 2012 the petitioner filed complaint
under Section 138 of the Negotiable Instruments Act, 1881 before
the Magistrate. By the Judgment and Order dated 20th August,
2018 the Magistrate convicted respondent No.1 and directed him
to undergo simple imprisonment for Two months and to pay
compensation of Rs.1,25,000/-. Aggrieved thereby respondent
No.1 filed Criminal Appeal No.762 of 2018 before the Session
28-wp-2977-2022.doc
Judge. During the pendency of the appeal parties arrived at
settlement by signing consent terms. Under consent terms accused
No.1 agreed to pay amount of Rs.1,20,000/- in 12 monthly equal
installments of Rs.10,000/- till 15th December, 2019. Based on the
consent terms, the Judgment and Order of 28 th Court, Esplande,
Mumbai in CC No.2800080/SS/2012 was set aside and the
respondent No.1 was acquitted for offence under Section 138 of
the Negotiable Instruments Act, 1881.
3. The applicant based on non fulfillment of consent terms filed
an application before Sessions Court. The applicant not being
aware of legal rights, withdrew the application seeking liberty to
adopt appropriate legal action. According to the applicant, such
concession was made by the applicant being not aware of the legal
rights conferred on him under law. The applicant therefore, has
challenged the rejection of application by filing present writ
petition.
4. This Court on 22nd November, 2022 issued notice for final
disposal to the respondent No.1. Office remark dated 23rd March,
2023 shows that the notice of this proceeding has been duly served
on respondent No.1. Despite service neither respondent No.1 nor
his advocate appears before this Court.
5. The applicant in paragraph 8 has stated on oath that the
cheques dated 15/04/2019, 15/05/2019, 15/06/2019,
06/07/2019, 10/07/2019 and 15/07/2019 issued by respondent
No.1 under consent terms were dishonored. In view of absence of
dispute as to statement on oath in paragraph 8, the statements will
28-wp-2977-2022.doc
have to be considered as correct. If this be so the order dated 2 nd
January, 2018 allowing the Criminal Appeal No.762 of 2018
setting aside of conviction and sentence in CC
No.2800080/SS/2012 deserves to be set aside.
6. I, therefore, pass following order :-
i) The impugned order dated 2nd January, 2019
passed by Sessions Judge, Greater Mumbai in
Criminal Appeal No.762 of 2018 is quashed and
set aside.
ii) Criminal Appeal No.762 of 2018 is restored on
the file of Sessions Judge, Greater Mumbai.
iii) The applicant remain present before the Session
Judge on 10th April, 2023 and shall place copy of
this order on record.
iv) The Sessions Judge shall decide the Criminal
Appeal No.762 of 2018 in accordance with law.
7. The Writ Petition shall stands disposed of in the above terms.
No costs.
(AMIT BORKAR, J.)
