Bombay High Court
Jitendra Shakerlal Brahmbhatt vs Param Krupa Construction Llp And Anr on 30 January, 2024
Author: Prakash D. Naik
Bench: Prakash D. Naik
2024:BHC-AS:4612
501-apl-101-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.101 OF 2024
Jitendra Shakerlal Brahmbhatt ...Applicant
Versus
Param Kruma Construction LLP and Anr. ...Respondents
....
Ms. Shraddha Singh i/by Ms. Seema Singh, Advocate for the Applicant.
Mr. Jatin P. Shah a/w Ms. S. Munj, Ms. Shraddha Kamble, Ms. Preeti
S.G. i/by Mr. Bankim Gangar, Advocate for the Respondent No.1
Mr. Arfan Sait, APP for the Respondent No.2 - State.
....
CORAM : PRAKASH D. NAIK, J.
DATE : 30th JANUARY, 2024.
P.C.:
1. Not on board. Taken on board.
2. The applicant is convicted for an offence under Section 138
of the Negotiable Instruments Act (for short "NI Act") vide
Judgment and order dated 20th September 2023 passed by the
learned Metropolitan Magistrate, 56th Court, Mazgaon, Mumbai in
C.C. No.5600618/SC/2022. The applicant (accused No.2) is
sentenced to pay compensation of Rs.4,16,21,938/- along with 9%
simple interest per annum from the date of filing of complaint till
its realization to the complainant within one month and in default
of payment of compensation, he was directed to undergo simple
imprisonment for six months.
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3. The Judgment of conviction was challenged by the applicant
before the Court of Sessions by preferring Criminal Appeal No.743
of 2023. Vide order dated 31st October 2023 the substantive
sentence imposed by the trial Court was suspended till the disposal
of appeal subject to the applicant depositing 20% interim
compensation amount from the compensation amount of
Rs.4,16,21,938/- within 60 days from the date of order, in
consonance with Section 148(2) of the NI Act. It was further
directed that failure to comply with the payment/deposition of the
20% amount of interim compensation it would automatically entail
for revocation of suspension of sentence/stay and operation of
order of the trial Court.
4. The applicant is praying for vacating the condition to deposit
20% amount of interim compensation imposed while suspending
sentence by order dated 31st October 2024 passed by the Sessions
Court.
5. Learned Advocate for the applicant submitted that the
applicant had also preferred an application before the Sessions
Court which is pending and due for hearing tomorrow i.e. on 31 st
January 2024, however the period of 90 days stipulated in Section
148(2) of the NI Act comes to an end tomorrow. The applicant is
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disabled person. His legs are amputated. He is in financial
constraints. The applicant has goods case on merits. The appeal is
pending before the Sessions Court. The conditional order passed
by the Sessions Court while suspending the sentence is required to
be set aside. On account of his disability, the applicant is not in a
position to arrange the funds. Hence, the applicant be exempted
from depositing 20% amount of interim compensation as directed
by the Sessions Court.
6. Per contra Mr. Shah, the learned Advocate for Respondent
No.1 submitted that the applicant has been convicted for an offence
under Section 138 of the NI Act. The transaction is of 2016. The
respondent was the contractor. He was supposed to clear the
liability of the labourers. The cheque was issued on 30 th November
2021. It was dishonoured on 2nd December 2021. During pendency
of the trial, the applicant was directed to pay the compensation in
accordance with Section 143(A) of the NI Act, which order was not
complied by the applicant. The applicant is claiming waiver of the
payment of compensation on vague grounds. The applicant had
paid amount and clear his liabilities on several other creditors. The
period of 90 days stipulated in Section 148(2) of the NI Act has
come to an end. Hence, no relief be granted to the applicant.
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7. Undisputedly, the applicant has been convicted for an offence
under Section 138 of the NI Act. The compensation amount is
huge i.e. in the sum of Rs.4,16,21,938/-. The sentence imposed by
the trial Court was suspended by the trial Court subject to
condition of payment of depositing 20% amount of the
compensation within a period of 60 days. There was no extension
thereafter. However, the period of 90 days is expiring tomorrow.
The grounds urged by the applicant are devoid of merits. The
transactions are of 2016. The applicant had failed to comply the
previous order passed by the trial Court under Section 143(A) of
the NI Act. I do not find any reason to grant 100% waiver to the
applicant. 20% amount is the minimum compensation prescribed
under Section 138 of the NI Act. At the most the time to deposit
compensation amount can be extended.
ORDER
i. Criminal Application No.101 of 2024 is rejected and
disposed of.
ii. Time to deposit the amount is extended by eight weeks
from today subject to the condition imposed by the appellate
Court while suspending the sentence.
(PRAKASH D. NAIK, J.)
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