Bombay High Court
Satyawan Tulshiram Dhulugade vs Nazir Aayub Awate And Anr on 13 September, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.295 OF 2023
WITH
INTERIM APPLICATION NO.3326 OF 2023
IN
CRIMINAL REVISION APPLICATION NO.295 OF 2023
Satyawan Tulshiram Dhulugade ...Applicant
Versus
Najir Aayub Awate & Anr ...Respondents
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Mr. B.A. Lawate, Advocate for Applicant.
Mr. S.H. Yadav, APP for State/Respondent.
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CORAM : SARANG V. KOTWAL, J.
DATE : 13th SEPTEMBER 2023
PC :
1. The Applicant was the original Accused in S.C.C.
No.743/2017 before the Judicial Magistrate First Class, Court
No.5, Karad. The learned trial Judge vide judgment and order
dated 30th December 2019 convicted the Applicant for commission
of offence punishable under Section 138 of Negotiable Instruments
Act, 1881 (for short "N.I. Act") and sentenced him to suffer simple
Digitally
signed by
imprisonment for six months and to pay compensation of Rs.10
ASHWINI
ASHWINI JANARDAN
JANARDAN VALLAKATI
VALLAKATI Date:
2023.09.13
05:45:11
+0530
lakhs to the Complainant i.e., the Respondent No.1 herein, and in
Ashwini V
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default the Applicant was directed to suffer simple imprisonment
for two months.
2. The Applicant preferred Criminal Appeal No.9/2020
before the Additional Sessions Judge, Karad. The said Appeal was
dismissed vide order dated 22nd August 2023. The Applicant was
taken into custody and as of today he is in custody.
3. Heard Mr. B.A. Lawate, learned Counsel for the
Applicant and Mr. S.H. Yadav, APP for the State.
4. The case of the Respondent No.1 is that the Applicant is
his son-in-law. The Applicant wanted to purchase a flat and,
therefore, the Respondent No.1 helped him financially by giving
Rs.15 lakhs. The Applicant returned Rs.5 lakhs through cheque
but did not return the remaining Rs.10 lakhs. The Complaint
stated that the Applicant gave three cheques for the total amount
of Rs.10 lakhs. Those cheques were dishonoured on presentation
in the bank and, therefore, the prosecution was launched.
5. During trial, the Respondent No.1 examined himself as
the prosecution witness. The Applicant examined himself and his
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wife i.e., the Respondent No.1's daughter as the defence witnesses.
At the conclusion of the trial, the Applicant was convicted, as
mentioned earlier, and his Appeal was also dismissed.
6. Learned Counsel for the Applicant submitted that the
Respondent No.1 has launched this prosecution because he was
unhappy with the Applicant as he has married the Respondent
No.1's daughter against the Respondent No.1's wish. It was an
inter religion marriage. The complaint is filed as outcome of this
ill will, which the Respondent No.1 has entertained against the
Applicant. Learned Counsel for the Applicant submitted that the
amount of Rs.10 lakhs was returned in cash from time to time and
for that purpose the Respondent No.1's daughter i.e., the
Applicant's wife had deposed to that effect before the trial Court.
The trial Court did not consider this evidence with due importance
and the Appellate Court wrongly interpreted that evidence. It was
an error to hold that the Applicant should have obtained some
writing in the form of acknowledgment or receipts of that cash
amount. Learned Counsel for the Applicant submitted that
considering the close relationships between the Respondent No.1,
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his daughter and the Applicant, it was understandable that the
Applicant did not insist on formal acknowledgment. He submitted
that the Applicant's wife has also deposed that the Applicant had
given a signed cheque book to her to use it in his absence as the
Applicant was a Medical Representative and was not available on
most of the days to look after the household work. The said
cheque book was given to the Respondent No.1 for safe keeping by
the Applicant's wife. The Respondent No.1 misused that cheque
book. This evidence is also not considered by both the Courts.
7. Learned Counsel, without prejudice to these contentions,
submitted that to show his bona fide, the Applicant is willing to
deposit 25% of Rs.10 lakhs in the trial Court within a period of
eight weeks from today. He further stated, on instructions, that
the Applicant does not have any objection if the Respondent No.1
withdraws that amount on executing an undertaking in the form of
affidavit that, such withdrawal would be subject to the final
outcome of the present Revision Application.
8. Considering these submissions, it is necessary to hear the
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Respondent No.1. Based on the submissions made by learned
Counsel for the Applicant, ad-interim protection in the form of
suspension of sentence and release of the Applicant on bail till the
next date, can be granted.
9. Hence, the following order:
ORDER
i) Issue notice to the Respondents, returnable on
14th December 2023.
ii) The Applicant is permitted to deposit
Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand
only) in the trial Court within a period of eight
weeks from today.
iii) If such amount is deposited, the Respondent No.1
is permitted to withdraw the said amount on
executing an undertaking in the form of affidavit
and tendering it before the trial Court that, such
withdrawal would be subject to the final outcome
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iv) Till the next date before this Court, the sentence
imposed on the Applicant is suspended.
v) By way of interim relief, the Applicant is directed
to be released on bail on his executing P. R. bond
in the sum of Rs.25,000/- (Rupees Twenty Five
Thousand only).
vi) This interim protection, in the form of interim
bail, shall operate till the next date before this
Court.
vii) Stand over to 14th December 2023.
(SARANG V. KOTWAL, J.)
