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2009 DIGILAW 132 (BOM)

Javed Hanif Quareshi v. Lakhani Traders

2009-01-29

S.S.SHINDE

body2009
Judgment : Rule. Rule made returnable forthwith by consent of parties heard finally. 2. This application is filed, challenging the judgment and order dated 21st June, 2008 passed by the Additional Sessions Judge, Nandurbar below application, Exh. 4, in Criminal Appeal No. 2/2008. 3. Thepresent applicant is the original accused in S.T.C.No. 60/05 which is tried by the Judicial Magistrate, First Class, Navapur for the offence punishable under section 138 of Negotiable Instruments Act, 1881. 4. The present respondent filed a private complaint in the Court of Judicial Magistrate, First Class, Navapur, alleging that the accused had purchased the live chicken stock from the complainant of worth Rs. 3 lacks. Towards the payment of said amount the accused had issued one cheque bearing No. 194321 to the complainant for the amount of Rs. 3 lacks. The said cheque dated 22nd November, 2004 was drawn on the State Bank of India, Branch at Songad. 5. On 29.2.2008 the learned Judicial Magistrate, First Class, Navapur has been pleased to convict the accused for the offence punishable under section 138 of Negotiable Instruments Act, 1881 and has sentenced the accused to suffer simple imprisonment for six months and to pay the compensation of Rs. 3 lacks to the original complainant. 6. On 25.3.2008 the present applicant filed Criminal Appeal No. 2/2008 before the Court of Additional Sessions Judge, Nandurbar, challenging the judgment and order dated 29.02.2008 passed by the J.M.F.C., Navapur. 7. In the said appeal the appellant/present applicant has filed application Exh. 4 for suspension of sentence and for releasing the appellant on bail, pending the hearing and final disposal of the criminal appeal. On 21st June, 2008 the Additional Sessions Judge, Nandurbar has been pleased to allow the application, Exh. 4, partly and has granted the stay to the operation of the judgment and order dated 29.2.2008 passed by the J.M.F.C., Navapur on the condition of depositing 50 % amount by the appellant/present applicant. 8. Thepresent application is filed by the applicant under section 482 of Cr.P.C., challenging the said order passed by the Additional Sessions Judge, Nandurbar below Exh. 4 in Criminal Appeal No. 2/2008 to the extent of direction to deposit 50% of the amount of compensation. 9. 8. Thepresent application is filed by the applicant under section 482 of Cr.P.C., challenging the said order passed by the Additional Sessions Judge, Nandurbar below Exh. 4 in Criminal Appeal No. 2/2008 to the extent of direction to deposit 50% of the amount of compensation. 9. The learned counsel appearing for the applicant submits that the impugned judgment and order is contrary to the facts on record of this case to the extent of direction in respect of payment of amount of compensation. He further submits that this Court in case of Mohamad Hafiz Khan Vs. Anand Finance & Anr. reported in (2003 ALL M.R. (Cri.) 1937) has been pleased to suspend the sentence on deposit of amount equivalent to 1/4th of the compensation awarded. He further submits that in other Criminal Applications Nos. 119/2006, 120/2006 and 121/2006 this Court allowed the application filed by the original accused and the order of stay to th effect, operation and execution of the judgment and order passed by the learned J.M.F.C., directing to deposit 1/4 of the compensation amount. The sum and substance of the argument of the counsel for applicant is that the interim order passed by this Court, directing the present applicant to deposit 1/4 amount of compensation should be made absolute. 10. The learned counsel appearing for the respondent vehemently opposed the prayer of the applicant and submitted that Sessions Court, taking facts and circumstances of this case in to account, has rightly directed the applicant to deposit 50% amount, therefore, no interference is called for and prayed that this Court may not be interfered in the order passed by the Additional Sessions Judge. The learned counsel relied on the judgment of this Court in the case of Maheshwar Dattatraya Kale Vs. Capt. Atul Wasudeo Divekar & Anr. reported in (2006 (1) A.I.R. Bom. R 361) and submitted that the learned judge would have been justified in imposing condition of deposit of the entire compensation amount. He further submitted that the Additional Sessions Judge has taken a reasonable view and directed the present applicant to deposit 50% amount. He further submitted that in view of the order passed by the Sessions Court, taking reasonable view, this application may be rejected. 11. Heard the learned counsel for the applicant and respondent at great length. He further submitted that the Additional Sessions Judge has taken a reasonable view and directed the present applicant to deposit 50% amount. He further submitted that in view of the order passed by the Sessions Court, taking reasonable view, this application may be rejected. 11. Heard the learned counsel for the applicant and respondent at great length. Mere perusal of the application and ground No. 4 taken in the application would show that the applicant is resident of small town namely Songad. There are large number of members in his family who are dependant on his income. The applicant belongs to poor strata of the society. The applicant is running a small business in retail. 12. This Court by order dated 30 July, 2008, directed the applicant to deposit 25% amount in stead of 50% as directed by the Sessions Court. It is true that normally the Court should direct to deposit entire amount of compensation. However, such direction is necessarily depend upon the facts and circumstances of each case. This Court taking a reasonable view passed interim order on 30th July, 2008, directing the applicant to deposit 25% amount in stead of 50% amount as directed by the Sessions Court. It is not in dispute that in pursuance to interim order of this Court, the present applicant has deposited the amount. In my view, the ends of justice would be met if the lower appellate Court is directed to decide the appeal filed by the applicant expeditiously and till then effect and operation of judgment and order dated 29th February, 2008 passed by the learned Judicial Magistrate, First Class, Navapur is stayed. 13. In the result, the criminal application is partly allowed. The lower appellate Court is directed to decide the Criminal Appeal No. 2/2008 filed by the applicant on merits within a period of six months from today. It is further directed that till the decision of the lower appellate Court the effect and operation of the judgment and order passed by the Judicial Magistrate, First Class, Navaur dated 2nd February, 2008 stands stayed. The original complainant is permitted to withdraw the amount of 25% deposited by the applicant towards compensation. Rule is made absolute as indicated above.