Bombay High Court
Onkar Ramchandra Athawale Prop. Of M/S. ... vs Awade Industries Private Limited And ... on 11 January, 2024
Author: Prakash D. Naik
Bench: Prakash D. Naik
5-REVN-41-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 41 OF 2022
WITH
CRIMINAL REVISION APPLICATION NO. 44 OF 2022
WITH
CRIMINAL REVISION APPLICATION NO. 42 OF 2022
WITH
CRIMINAL REVISION APPLICATION NO. 43 OF 2022
WITH
CRIMINAL REVISION APPLICATION NO. 45 OF 2022
Onkar Ramchandra Athawale
Prop. of M/s. Bhima Colour Cartoons ...Applicant
Versus
Awade Industries Private Limited And Anr. ...Respondents
....
Mr. Vivek Patil i/by Mr. Siddheshwar Biradar, Advocate for the
Applicant.
Mr. Prajakt Arjunwadkar, Advocate for Respondent No.1.
Mr. Arfan Sait, APP for Respondent-State.
....
CORAM : PRAKASH D. NAIK, J.
DATE : 11th JANUARY, 2024.
P.C.:
1. The Revision Applicant in all these applications has
challenged the impugned Judgment passed by the trial Court
convicting the Applicant for offence under Section 138 of
Negotiable Instruments Act and the Appellate Court confirming the
conviction. The trial Court while convicting the Applicant had
sentenced him to suffer simple imprisonment for six months and to
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pay compensation. The quantum of compensation was different in
each case. the learned Sessions Judge partly allowed the appeal.
The substantive sentence of imprisonment for six months was
confirmed however, the sentence of payment of compensation and
imprisonment in default of payment was set aside.
2. The Order passed by the Appellate Court indicate that
the witness of the complainant had admitted in the cross-
examination for the amount of cheque the complainant instituted
suit bearing no.19 of 2014 and it was decreed. Once the suit is
decreed the complainant can recover the amount of decree by
instituting the executing proceedings. He cannot further claim
compensation regarding the same transaction in criminal
proceeding. Decree in the suit for recovery of the amount to the
suit as well as awarding compensation in criminal proceedings for
the same transaction would be an unjust enrichment of the
complainant.
3. Apparently, the Orders setting aside the compensation is
not challenged by the complainant and the decree passed in the
civil suit is also not challenged by Accused before the Higher Court.
The contention of the Applicant in all these applications is that the
case relates to delivery of craft papers. The purchase Orders and
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tax invoices does not match as dispute about the delivery of goods.
4. There are serious discrepancies in evidence.
5. Learned counsel for the complainant however submitted
that the Applicant had urged various defences. All the defences
were rejected by both the Courts. All the requisite ingredients to
constitute the offence under Section 138 of Negotiable Instruments
Act were established. The findings of the trial Court does not
require any interference. Goods were delivered. If the Accused had
any dispute about the nature of goods, the goods could have been
returned to the complainant. The liability is proved. There is
concurrent finding of the Court and hence the revisions may be
dismissed.
6. It is pertinent to note that the revision applications now
pertains to challenge to substantive sentence of imprisonment
awarded by the Courts below extent of six months imprisonment,
as the compensation part has been set aside by the Appellate Court.
Issues raised by the parties required to be adjudicated. Hence, I
pass the following order;
ORDER
i. Rule.
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ii. Interim relief granted by this Court shall continue till
final disposal of the Revision Applications.
iii. Hearing of the Revision Applications are expedited.
(PRAKASH D. NAIK, J.)
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