Scope in
writ jurisdiction can not be benedicted upon the
complainant, as accused was forced, by virtue of
conviction by learned Judicial Magistrate F.C., to
pay compensation under Section 357(3) of Cr.P.C.
Since accused was acquitted in the proceedings, no
law can force him to pay the amount of
compensation. Court should not confer benefits
impelled by sympathetic consideration, devoid of
law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Ganesh Gopal Mahajan,
CRIMINAL WRIT PETITION NO.177 OF 2013
Versus
Dhanraj Pandharinath Sapkale,
CORAM : K.U.CHANDIWAL, J.
DATED : MARCH 1, 2013
Citation;2014(5) MHLJ 305
Heard. Rule, made returnable forthwith.
Parties are referred with their original status as
complainant and accused.
In an Appeal against conviction for offence
2]
under Section 138 of Negotiable Instruments Act,
3]
the appellate Court allowed the appeal.
On 14th February, 2013, matter was argued
extensively.
However, Mr.Bhokarikar felt,
considering the scope and nature of Appellate order
and the relief which was sought from this Court, to
convert the Criminal Revision Application into
Criminal Writ petition. Accordingly, he was
4]
permitted to do so.
Learned Sessions Judge found that on 22nd
November, 2002, there was intimation of dishonour
of cheque to the complainant. The transaction
being prior to 6th February, 2003 (prior to
amendment in Negotiable Instruments Act), the
complainant was expected to serve statutory notice
within 15 days. By calculation, it should have
been upto 7th December, 2002, however, notice was
dispatched on 9th December, 2002. This is more so
indicated on the postal receipt produced in
evidence. Learned Sessions, on these factual
aspects, held that the notice was beyond the period
of limitation and allowed the Appeal.
5]
Effect of Section 138 of Negotiable
Instruments Act and penalty or conviction, as the
case may be, comes into operation only on strict
adherence of condition in clauses (a), (b) and (c)
of the proviso. The legal position was explained
in the matter of Sivakumar Vs. Natarajan,
2009(5)Bom.C.R. 271 by observing in paragraph 10,
that, by reason of provisions of Negotiable
Instruments Act, a legal presumption in regard to
commission of a crime has been raised. The proviso
appended thereto, however, states that nothing
contained in the main provision would apply unless
conditions specified in Clauses (a), (b) and (c)
thereof are complied with. Clauses (a), (b) and
(c) of the proviso, therefore, lay down conditions
precedent for applicability of the main provision.
Section 138 of the Act being penal in nature,
indisputably, warrants strict construction. The
Apex Court also considered earlier pronouncement in
the matter of M/s.Harman Electronics (P) Ltd. and
anr. Vs. M/s. National Panasonic India Ltd.,
2008(16)SCALE 317 wherein, Hon’ble Supreme Court
held :
“
The proviso appended thereto
imposes certain conditions before a
complaint petition can be
entertained.”
This legal position enumerated, cannot be
6]
overlooked though learned counsel made passionate
submission that there was business relations
between the parties, or that the liability has
been established.
available to the complainant. The learned counsel for complainant, having
7]
converted the Revision Application into Writ
Petition, feels that the Rule of equity will be available to the complainant. The learned counsel for complainant, having For such purposes,
reliance was placed to the judgment in the matter
of Mrs.Manju Bhatia and another Vs. New Delhi
Municipal Council and another, AIR 1998 SC 223.
In the said case, a building was constructed
illegally, sold to some flat owners, it was
demolished since it was unauthorised. The flat
owners were unaware of illegal construction. The
Supreme Court held that they were entitled to be
recompensated for the loss suffered by them.
8]
In the matter of Panchugopal Barua Barua and
ors. Vs. Umesh Chandra Goswami and ors, AIR 1997
SC 1041, the Supreme Court was dealing with a
Second Appeal, its tenability and observed,
equitable jurisdiction must be exercised so as to
prevent perpetration of legal fraud, promote
honesty and good faith. Party seeking relief in
equity must come to the Court with clean hands.
There is no contest on legal preposition
indicated by Hon’ble Supreme Court. Fraud
unravals everything.
The facts, in this case, does not project a
9]
fraud played by the accused to induce the
complainant, to part with his money or with
dishonest intention. The proceedings was strictly
under banner of 138 of Negotiable Instruments Act.
Consequently, parameters indicted under Sections
138 or 139 thereof will be applicable with
available presumptions under Section 119 or
Section 120. Law is hard, but it is the law. The
compensation discussed in Section 117 of the Act
is of altogether different context.
The
compensation in the penal statute concerning
offence under Section 138 of Negotiable
Instruments Act, is taken care by Section 357(3)
of Cr.P.C.
10] Learned counsel has placed reliance to the
judgment of the Supreme Court decided by three
Judges in the matter of MSR Leathers Vs. S.
Palaniappan and anr, 2012 STPL(Web) 527 SC. The
three Judges’ bench has observed, issuance of
earlier notice, if there is cause of action to the
complainant, will not take away complainant’s
rights. No such situation has emerged for the
complainant in the present case. He had no cause
of action, nor he has exhausted his remedies
within the stipulated time as prevailing prior to
2003 amendments, strictly in sense of clauses (a),
(b) and (c) of proviso to Section 138 of
Negotiable Instruments Act.
11] In M/s.Mandvi Coop. Bank Ltd. Vs. Nimesh B.
Thakare, AIR 2010 SC 1402, was recording evidence
on affidavit in terms of Section 145(1) of
Negotiable Instruments Act and whether, evidence
inchief should necessarily be recorded or if
affidavit is filed, the accused has to cross
examine. The scope of Section 137 of Evidence Act
was also discussed by the Supreme Court. No such
situation has emerged in the facts at hand.
12] Taking overall survey of the matter, I find
even if, Revision Application is converted into
Writ Petition, basically, since acquittal is
challenged by the complainant, it should have been
in terms of Section 378(4) of Cr.P.C. Scope in
writ jurisdiction can not be benedicted upon the
complainant, as accused was forced, by virtue of
conviction by learned Judicial Magistrate F.C., to
pay compensation under Section 357(3) of Cr.P.C.
Since accused was acquitted in the proceedings, no
law can force him to pay the amount of
compensation. Court should not confer benefits
impelled by sympathetic consideration, devoid of
law. Writ Petition lacks merit, dismissed. Rule
discharged.
[K.U.CHANDIWAL, J.]
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