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2012 DIGILAW 1994 (BOM)

RAJESH BHAGWANDAS SONI v. STATE OF MAHARASHTRA

2012-10-15

SHRIHARI P.DAVARE

body2012
JUDGMENT: 1. Heard learned respective counsel for the parties. Rule. Rule made returnable forthwith. With the consent of parties, taken up for final hearing. 2. By the present criminal revision application, the applicant herein questioned the correctness and legality of the conviction imposed upon the applicant for the offence p/u/s 138 of Negotiable Instruments Act and sentence inflicted upon him to suffer S.I. for one year and to pay fine of Rs.11,00,000/- (Rs. Eleven lacs only) in default to suffer S.I. for four months and directed to pay amount of Rs.10.00 lacs to the complainant towards compensation out of the said fine amount by way of judgment and order dated 27.02.2009, rendered by learned Judicial Magistrate First Class, Jalna in STCC No.3200/2004 and confirmation thereof by learned Additional Sessions Judge, Jalna in Criminal Appeal No.22/2009 dismissing the appeal preferred by the applicant by judgment and order dated 3.4.2012. (The parties herein after are referred to as per their original status i.e. complainant and accused). 3. The complainant is the Estate broker and he was dealing with the business of commission agent. Accused was interested in purchase of agricultural land in Jalna city and accordingly accused expressed his desire to the complainant and asked to search the land for him. Accused also agreed to pay commission to the complainant in that respect. According to the complainant, he searched lands for accused and accused purchased land bearing S.No.125/1/A, 126/1/A, situated at Bhokardan Ring Road. He also purchased the lands bearing survey no.546/2 and 546/3 situated at Jalna Mantha road near Deulgaon Raja ring road and, also purchased land bearing S.No.273 situated within the municipal limits of Jalna. According to the complainant, accused agreed to pay commission of Rs.7,00,000/- for the aforesaid purchase of land S.No.125/1/A and 126/1/A and also agreed to pay Rs.1,50,000/- towards lands bearing S.N.546/2 and further agreed to pay commission of Rs.1,50,000/- for the purchase of land bearing S.No.546/3, 273. In all accused agreed to pay Rs. 10,00,000/- to the complainant towards commission. In order to pay the said amount of commission, accused issued a cheque No.347204 dated 21.09.2004 for Rs.10.00 lacs drawn on Jalna Peoples Cooperative Bank, Ltd Mondha Branch to the complainant. Accordingly, complainant presented said cheque on 21.9.2004 for encashment purpose through his banker, however said cheque was returned unpaid for the reason payment stopped by the drawer. In order to pay the said amount of commission, accused issued a cheque No.347204 dated 21.09.2004 for Rs.10.00 lacs drawn on Jalna Peoples Cooperative Bank, Ltd Mondha Branch to the complainant. Accordingly, complainant presented said cheque on 21.9.2004 for encashment purpose through his banker, however said cheque was returned unpaid for the reason payment stopped by the drawer. Hence, complainant issued notice to the accused on 4.10.2004 by RPAD and UCP. However, since accused failed to make the payment of the said cheque amount within stipulated period, complainant filed complaint under section 138 of Negotiable Instruments Act against accused. 4. Accordingly, process was issued against accused and accused appeared in the said complaint and furnished bail bonds. Plea of the accused was recorded and accused pleaded not guilty and claimed to be tried. The defence of the accused was of total denial and particularly raised the defence that he had lost cheque on 17.1.2004 and informed his banker about loss of cheque and therefore, issued stop payment instructions. He had also lodged the police complaint in the police station. According to him subsequently, cheque was found by the complainant and same was misused by him. However, the defence of the accused was not accepted by the learned trial court and he was found guilty, and accordingly, was convicted and sentenced as mentioned herein above by the judgment and order dated 27.2.2009. Being aggrieved and dissatisfied by the said conviction and sentence, accused preferred criminal appeal No.22/2009 before learned Sessions Court, Jalna. However, same also came to be dismissed by judgment and order dated 3.4.2012. Hence, the applicant filed present criminal Revision application No.55/2012 questioning the correctness and legality of the said conviction and sentence and its confirmation. 5. During the pendency of present Criminal Revision Application, since complainant and accused are friends since childhood and they had good and cordial relations till commencement of the said litigation, their friend and well wishers approached them and requested to settle the matter. Accordingly, accused agreed to pay amount of Rs.10,00,000/- i.e. amount of original cheque to the complainant, and requested the complainant to compound the offence. Request of the accused was accepted by the complainant and accordingly both of them filed Criminal Application No.4061/2012 in the present Criminal Revision Application. 6. Accordingly, accused agreed to pay amount of Rs.10,00,000/- i.e. amount of original cheque to the complainant, and requested the complainant to compound the offence. Request of the accused was accepted by the complainant and accordingly both of them filed Criminal Application No.4061/2012 in the present Criminal Revision Application. 6. It is agreed between the parties that the accused had paid amount of Rs.10,00,000/- through account payee cheque No.617058 dated 13.8.2012 drawn from his account No.18246 maintained by him with Jalna Peoples Cooperative Bank Limited, Sadar Bazar Branch, Jalna in favour of complainant and said cheque has been delivered by the accused to the complainant and complainant has issued receipt acknowledging the receipt thereof. Accused has assured to the complainant that said cheque shall be positively honoured by him without any excuses and in the event of any dishonor thereof the complainant shall be at liberty to take recourse to the law. Accused in unequivocal terms declared that above said cheque has been issued by him against lawful consideration. 7. Both the parties assure each other that they shall maintain good and cordial relations and dispute between them has been set at rest amicably and finally. It is agreed between the parties that matter is settled completely and both the parties will not initiate any criminal as well as civil proceedings against each other in future in respect of above matter i.e. STCC No.3200/2004 save and except the cause of action accrues as spelt out as mentioned herein above. Hence, both the parties requested to accept the application no.4061/2012 and accused be set at liberty. Fine amount whatsoever deposited by the accused in the court may be ordered to be refunded to him for which the complainant gives consent. Accordingly, complainant and accused urged that said application be allowed and they be permitted to compound the offence under section 147 of Negotiable Instruments Act and accused be acquitted of the charges levelled against him. 8. It appears that said application No.4061/2012 has been signed by the complainant as well as accused and their respective advocates and complainant as well as accused have sworn in verification affidavits there below. Complainant and accused are present today in the court and admit their respective signatures below application no.4061/2012 and also admit the contents thereof and also expressed their willingness to compound the offence since they have settled the matter out of the court. 9. Complainant and accused are present today in the court and admit their respective signatures below application no.4061/2012 and also admit the contents thereof and also expressed their willingness to compound the offence since they have settled the matter out of the court. 9. Since the complainant and accused have settled the matter amicably out of the court as mentioned herein above and since they have decided to set at rest the dispute between them, with a view to maintain cordial relations between them and since accused has given above referred cheque of Rs.10.00 lacs to the complainant, with the assurance that said cheque shall be honoured positively, which has been issued by him towards lawful consideration, there is no impediment in compounding the offence of section 138 of Negotiable Instruments Act under section 147 of Negotiable Instruments Act, subject to payment of compounding charges of Rs.10,000/- EACH by complainant and accused to the High Court Advocates Library, Aurangabad, and the amount of Rs.10,00,000/- (Rs. Ten lacs) deposited by the accused before the trial court/Sessions Court, Jalna is required to be refunded to him. 10. In the result, in view of the amicable settlement between the parties out of the court, as mentioned herein above, the offence under section 138 of Negotiable Instruments Act in the present matter stands compounded under section 147 of Negotiable Instruments Act and conviction and sentence imposed upon the accused by way of judgment and order dated 27.2.2009 in STCC No.3200/2004 and confirmation thereof by the judgment and order dated 3.4.2012 by the learned Additional Sessions Judge, Jalna in Criminal Appeal No. 22/2009 stands quashed and set aside and accused is acquitted for the offence punishable under section 138 of Negotiable Instruments Act subject to PAYMENT of compounding charges of Rs.10,000/- (Rs. Ten thousand) EACH by the complainant and accused respectively to the HIGH COURT Advocates Library, AURANGABAD within the period of FOUR WEEKS from today. The amount of Rs.10,00,000/- (Rs. Ten lacs), with interest if any deposited by the accused before the learned Trial Court / Sessions Court shall be refunded to the accused. Present Criminal Revision application and Criminal Application stand disposed of accordingly. R & P be sent back to the concerned court. Rule is made absolute in aforesaid terms.