IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATION NO. 2442 OF 2008
Javed Hanif Quareshi,
Age 28 yrs., Occu. Business,
R/o. Near Vegetable Market,
Songadh, Tq. Songadh, Dist.
Surat (Gujrath).
..Applicant.
VERSUS
Lakhani Traders, Through its
Mnager Shri.Nadim Nazir Inamdar,
Age years, Occu. Business,
R/o. Devalfali, Nawapur,
Tq. Nawapur, dist. Nandurbar.
..Respondent.
Shri.V.P.Raje Advocate h/f. Shri.C.R.Deshpande,
Advocate for applicant.
Shri.Swapnil S. Patil, Advocate for respondent.
CORAM : S.S.SHINDE, J.
DATED : 29th JANUARY, 2009.
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.
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3. The present 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
of worth Rs.
the live chicken stock from the complainant
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.
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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.
Judge,
On
Nandurbar
21st June, 2008 the Additional
has been pleased to
Sessions
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. The present 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.
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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.
allowed
119/2006,
ig 120/2006 and 121/2006
the application filed by the original accused
this Court
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,
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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
has
submitted that the Additional Sessions
taken a reasonable view and directed the
Judge
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.
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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
It is not
stead of 50% amount as directed by the Sessions Court.
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
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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.
ig [ S.S.SHINDE, J.]
ssc/criapln2442.08
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