Bombay High Court
Kirit R Rambhia vs Parimala P Mehta Through Her ... on 23 October, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.335 OF 2023
WITH
INTERIM APPLICATION NO.3844 OF 2023
IN
CRIMINAL REVISION APPLICATION NO.335 OF 2023
WITH
INTERIM APPLICATION NO.3845 OF 2023
IN
CRIMINAL REVISION APPLICATION NO.335 OF 2023
Kirit R. Rambhia .... Applicant
versus
Parimala P. Mehta & Anr. .... Respondents
.......
• Mr. Amol Joshi a/w Chetan Pawar, Advocate for Applicant.
• Mr. Jatin P. Karia (Shah) a/w Snehankita Munj a/w Shraddha
Kamble, Advocate for Respondent No.1.
• Mr. Ajay Patil, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL, J.
DATE : 23rd OCTOBER, 2023
P.C. :
1. Learned counsel for the Applicant seeks leave to amend
the cause title to substitute son of the original Respondent as the
party Respondent in this proceeding. Leave is granted to that
effect.
Nesarikar
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2. The Applicant was the original accused in CC No.1575/
SS/2018 before the Metropolitan Magistrate, 20th Court,
Mazgaon, Mumbai. The learned Magistrate convicted and
sentenced the Applicant vide his judgment and order dated
15/02/2020. The Applicant was convicted for commission of
offence punishable u/s 138 of the Negotiable Instruments Act
and was sentenced to suffer simple imprisonment till rising of
the Court and to pay a fine of Rs.5 lakhs. In default to suffer
simple imprisonment for three months. The Applicant was
directed to pay compensation amount of Rs.5 lakhs to the
complainant/Respondent No.1 with 9% interest per annum from
the cause of action till realization of the amount.
3. The prosecution case was that the complainant had
advanced loan of Rs.5 lakhs to the Applicant. In repayment
thereof, the Applicant issued cheque dated 04/05/2018 for Rs.5
lakhs, drawn on Punjab National Bank, M.G. Road, Thane
Branch. It was dishonoured on 04/05/2018 and therefore this
prosecution was launched.
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4. Learned counsel for the Applicant submitted that the
transaction was in the nature of money lending transaction and
the complainant did not have license for that. Therefore there
was no legally enforceable liability. The evidence given by the
power of attorney holder could not have been led on behalf of
the complainant. Apart from submissions on merits, learned
counsel for the Applicant submitted that the Applicant has
already deposited 50% of the cheque amount before the
Appellate Court. He submitted that the Applicant is desirous of
settling the matter with the complainant.
5. Learned counsel Mr. Jatin P. Karia (Shah) appears for
the Respondent No.1 and waives service of notice on behalf of
him. He submitted that the original complainant was 83 years of
age and she expired during pendency of the Appeal. The Appeal
was further prosecuted by her son as her legal heir. He
submitted that there is already delay in getting relief in this
matter and therefore that factor may be taken into
consideration.
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6. I have considered these submissions. Since, learned
counsel for the Applicant showed his willingness to explore the
possibility of settlement, some opportunity needs to be given to
the parties to explore such possibility. However, considering that
the complainant had died and the Appeal was prosecuted by her
son, some urgency needs to be shown.
7. Learned counsel for the Applicant states that the
Applicant does not have any objection if the amount which is
deposited before the Appellate Court, is withdrawn by the
Respondent No.1, on executing necessary undertaking, subject
to outcome of the Revision Application.
8. Considering these submissions, following order is
passed :
ORDER
(i) Leave to amend to substitute the original
Respondent No.1 by mentioning her son as the
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Respondent No.1. Amendment shall be carried
out within a period of one week from today.
(ii) Issue notice to the substituted Respondent No.1.
(iii) Learned counsel Mr. Jatin P. Karia (Shah) waives
service of notice on Respondent No.1.
(iv) The notice is made returnable on 06/11/2023.
(v) By way of ad-interim relief, till the next date, the
substantive sentence imposed in the Applicant
shall stand suspended.
(vi) Stand over to 06/11/2023.
(SARANG V. KOTWAL, J.)
