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2013 DIGILAW 1831 (BOM)

Suresh Hiralal Barwal v. State of Maharashtra

2013-09-06

ABHAY M.THIPSAY

body2013
JUDGMENT 1. Rule against the respondent No.1. It is not necessary to issue rule against the respondent no.2. By consent of the learned APP rule is made returnable forthwith. By consent, decided finally. 2. The petitioner came to be convicted of an offence punishable under section 138 of the Negotiable Instruments Act on a complaint filed by the respondent no.2 herein. The learned Magistrate sentenced him to suffer R.I. one year and also to pay a compensation of Rs.4,00,000/- (Rs. Four lacs) to the respondent no.2. Against his conviction and sentence the petitioner approached the Court of Sessions by filing an appeal. The learned Additional Sessions Judge admitted the appeal and also ordered that substantive sentence imposed upon the petitioner to be suspended on the condition that the petitioner shall deposit 50% of the compensation within a period of two months from the date of the said order which was passed on 23.7.2013. The petitioner is aggrieved by the condition requiring him to deposit 50% of the amount of compensation and has therefore approached this Court invoking its constitutional jurisdiction. 3. Learned counsel for the petitioner submits that the insistence of the learned Additional Sessions Judge-5, Aurangabad to require the petitioner to deposit 50% of the compensation is totally unjustified and contrary to various pronouncements of the Supreme Court of India. 4. I have considered the matter. 5. I find that the learned Additional Sessions Judge was of the view that the conduct of the petitioner during the trial was not proper. Inspite of the decision of the Supreme Court in the case of Dilip Dahanukar Vs. Kotak Mahindra Co. Ltd and others reported in [2007 (2) BCr C 472 (SC)] having been pointed out to the learned Additional Sessions Judge, he imposed the condition to deposit 50% of the compensation by observing that ‘the petitioner had refused to accept the statutory notice’ and that ‘his defence was not reliable’ and that ‘in the light of his conduct, it was necessary to impose the condition requiring deposit of 50% of the amount of compensation.’ 6. The view taken by the Additional Sessions Judge is contrary to law. He has disregarded the observations made by the Supreme Court of India in Dilip Dahanukar’s case (cited supra) without proper and justifiable grounds. The view taken by the Additional Sessions Judge is contrary to law. He has disregarded the observations made by the Supreme Court of India in Dilip Dahanukar’s case (cited supra) without proper and justifiable grounds. Having admitted the appeal, it was necessary for the learned Additional Sessions Judge to decide the matter on merits and he ought not to have opined about the false or bogus defence of the petitioner, as perceived by him. 7. In any case, in my opinion, since cheque amount was Rs. 3,00,000/- (Rs. three lacs) if the petitioner is made to deposit an amount of Rs.50,000/-towards the part payment of the compensation within a period of FOUR WEEKS from today, the same would meet the ends of justice. 8. In the result, the condition requiring the petitioner to deposit 50% of the amount of compensation as imposed by the learned Additional Sessions Judge by his order dated 23.07.2013 is set aside. The petitioner shall, however, deposit an amount of Rs. 50,000/-towards the part payment of compensation within a period of ONE MONTH from today. Petition is allowed in the aforesaid terms. Rule is made absolute accordingly.