The present matter is not case under
Section 357(3) of Cr.P.C. Still, however, while
suspending the fine under Section 389 of Cr.P.C.,
keeping in view rival claims which are yet to be
finally decided in Appeal, it will be reasonable
that interest of the complainant as well as the
accused, both are safeguarded. The prayer in the
present Petition is to stay the impugned order to
the extent of direction of deposit of entire
amount of fine within fifteen days. Looking to the
amount of cheque concerned, it would be reasonable
that instead of Rs.6,50,000/ directed to be
deposited as fine, the sentence of payment of fine
is suspended, subject to condition of deposit
of Rs.4,24,040/, for which some reasonable time
is given.
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL WRIT PETITION NO.138 OF 2014
Sou. Sushila w/o Vithalrao Kadam,
VERSUS
Bhagyalaxmi Nagari Sahakari Pat
Sanstha Maryadit,
CORAM: A.I.S. CHEEMA, J.
DATE OF PRONOUNCING JUDGMENT: 6TH MAY, 2014.
Citation; 2014 ALLMR(cri) 3806
In this matter, Rule was issued on 30th
Respondent No.1 original complainant is
2.
April, 2014 and the matter has been finally heard.
a society doing business of banking and had filed
complaint against the Petitioner having S.C.C.
No.1043 of 2002 before the Judicial Magistrate,
First Class, Kopargaon for the offence punishable
under Section 138 of the Negotiable Instruments
Act (“Act” in brief). It was alleged that the
Petitioner had availed hypothecation loan and in
that context, on 13th May 2002, issued cheque of
Rs.4,24,040/ in favour of the complainant. The
cheque was dishonoured and thus the complaint was
filed. After trial, the Petitioner was convicted
on 10th January, 2014 and sentenced to suffer
simple imprisonment for three months and imposed
fine of Rs.6,50,000/ and in default to suffer
simple imprisonment for two months. Out of the
fine amount, Rs.6,00,000/ were directed to be
paid as compensation to the complainant.
It is claimed that against the Judgment
3.
of the Magistrate, Criminal Appeal No.3 of 2014
was filed and it came up before the Additional
Sessions Judge, Kopargaon. In Appeal, Application
Exhibit 5 was moved to suspend the sentence. The
Additional Sessions Judge, in the order, directed
to deposit the entire amount of fine within
fifteen days. Being aggrieved by such order,
present Petition has been filed.
4.
The Petitioner claims that the order
passed by the Additional Sessions Judge is
contrary to the spirit of Section 389 of the Code
of Criminal Procedure, 1973 (“Cr.P.C.” in brief)
and she could not be put to such strict terms of
depositing the entire amount of fine within
fifteen days. The order, directing deposit of
entire amount of fine, is illegal. The Petitioner
claims that it is necessary to modify the order
dated 16th January 2014, to the extent of
The contesting Respondent No.1 society
5.
within fifteen days.
directions of depositing entire amount of fine
original complainant, has filed affidavit in
reply. Respondent No.1 claims that the Petitioner
had availed hypothecation loan and the Petitioner,
her husband and sons mortgaged family lands which
were in their name, by registered mortgage, in
favour of the complainant society. The Respondent
No.1 has annexed copy of the mortgage deed as well
as 7 X 12 extracts of the lands which were
mortgaged. Respondent No.1 has claimed that the
Petitioneraccused had, after verifying the
accounts, issued the cheque of Rs.4,24,040/ but
the same was dishonoured. There was Arbitration
Case in Cooperative Court at Kopargaon bearing
No.548 of 2004, to recover the amount of the loan,
which was decided in favour of Respondent No.1
Society and the Petitioner was directed to pay
Rs.4,74,386/ along with interest, which has now
become dues of Rs.11,44,332/. Respondent No.1
claims that Respondent No.1 filed Appeal to
Appellate Cooperative Court, as N.P.A. interest
was not awarded and the Petitioner also preferred
Appeal against the award. Although there is no
stay to the execution, the Petitioner has not paid
any amount. Respondent No.1 has claimed that the
land mortgaged with the Respondent Society was
subsequently mortgaged by the Petitioner and her
family members to other institutions also and this
was learnt by the Respondent Society when notice
was received in Special Darkhast No.69 of 2004. It
is also contended by the Respondent Society that
son of Petitioner, who had mortgaged the property
with the Respondent society, was indebted to 13
creditors and later on filed Insolvency Petition
No.3 of 2010 before Civil Judge, Senior Division,
Kopargaon, which came to be dismissed, as far as
regards present Respondent society is concerned.
The Petitioner, with mala fide intentions, had
moved the Consumer Court claiming payment of
deposit amount, but her complaint was dismissed
and State Consumer Forum also permitted
appropriation of the amount of deposit towards
loan. Respondent society claims that the
Petitioner was working in a modus operandi to
mortgage the same property with several financial
institutions and then drag them to vexatious
litigations for years together, although the
Petitioner has sufficient means and landed
properties. The Respondent society has been trying
to recover the amount of loan since the year 2000
and till now has not been able to succeed.
According to the Respondent society, Section 389
of Cr.P.C. cannot be interpreted in a way which is
detriment to the creditor in the back ground of
the legislative history of provisions of the Act.
The Respondent society, along with affidavitin
reply, has supported the contentions by
documentary evidence.
6.
I have heard learned counsel for both
sides. Learned counsel for the Petitioner
submitted that the Petitioner is an old lady and
that she is in bad financial condition. After the
order was passed by the Judicial Magistrate,
Rs.1,50,000/ were deposited. According to learned
counsel, this was sufficient amount and during
pendency of the Appeal, the Petitioner should not
be forced to deposit the remaining amount of fine.
Reliance was placed on the case of Bikram Kumar
Jena vs. State of Orissa and another, reported in
2010(4) Crimes 594, to submit that in that matter
there was direction to pay Rs.1,50,000/ as
compensation and the appellate Court had directed
the accused to deposit Rs.1,00,000/, however the
High Court had, while considering the plea of the
accused of financial stringency, reduced the
amount to Rs.50,000/. Reliance was also placed on
the case of N. Henry vs. Vijaya Kumar, reported in
2010 DGLS(DOC) 425, to submit that in that matter
the accused was directed to deposit Rs.5,000/
instead of 50% of the fine amount i.e.
Rs.1,00,000/. According to the learned counsel,
keeping in view the above approach of the Hon'ble
High Courts, in present matter also the Petitioner
7.
deserves to be given benefit.
Learned counsel further relied on the
case of Dilip S. Dahanukar vs. Kotak Mahindra Co.
Ltd. and another, reported in 2007 (6) S.C.C. 528.
That was a matter where, while convicting the
accused No.1 company, sentence passed was of fine
of Rs.25,000/ and in default of fine, the accused
No.2, chairman of the company was directed to
suffer simple imprisonment for one month. The
accused No.2 was also convicted for the offence
under Section 138 read with 141 of the Act and
sentenced to suffer simple imprisonment for one
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cwp138.14
9
month. In that matter, there was further order
that the accused No.2 will pay compensation to the
complainant quantified at Rs.15,00,000/, under
Section 357(3) of Cr.P.C. and certain installments
were given to him. In that context, the Hon'ble
Supreme Court considered the provisions of Section
357(3) of Cr.P.C. and had directed the appellant
8.
Rs.1,00,000/.
ig
before the Hon'ble Supreme Court to deposit
Against this, the learned counsel for
Respondent No.1 referring to the contents of the
affidavitinreply and various documents in
support, has submitted that the Petitioner
although having sufficient means, has no intention
to pay and apart from the present Respondent
society, there are various other creditors who are
being made to face litigations just because there
is no intention to pay. The learned counsel for
Respondent society pointed out copies of 7 X 12
extracts which are being filed on record, to show
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10
that the Petitioner and her family members had
various properties standing in their names. Name
of Petitioner herself appears against Gut Nos. 237
and 238/2, as can be seen from Exhibit A1 and
A2, filed along with affidavitinreply. It is
argued that there is no financial stringency faced
by the Petitioner but the whole thing is that the
ig
Petitioner just does not want to return money. It
has been argued that the Respondent society is in
banking sector and because of such bad loans, the
whole system is suffering. The object, with which
provisions were made in the Negotiable Instruments
Act, is getting defeated. Learned counsel for
Respondent society submitted that the Judgment
relied on in the matter of “Dilip S. Dahanukar”,
cited supra, is with reference to Section 357 of
Cr.P.C., which is not relevant for the present
matter. According to the counsel for Respondent,
that matter relates to question, when order of
compensation is under Section 357 (3) of Cr.P.C.
According to him, in the present matter, relevant
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11
provision is Section 389 of Cr.P.C. and the order
concerned of Judicial Magistrate was not under
Section 357(3) of Cr.P.C. Order of the Judicial
Magistrate imposed fine and from the amount of
fine, compensation was directed to be paid. The
order is within the compass of Section 138 of the
Act, in which the Magistrate could have imposed
ig
fine double the amount of cheque of Rs.4,24,040/
but considering the entire nature of the case and
physical condition of the accused, the Magistrate,
as per observations below Point No.3, decided to
impose only fine of Rs.6,50,000/. Learned counsel
for Respondent society submitted that the order
passed by the Sessions Court deserves to be
maintained.
9.
The Respondent is a society who gives
loans to its members. Such transaction has led to
the present litigation. Although the Petitioner is
claiming that she is in financial constraints,
Respondent society has brought material on record
to show that inspite of having resources, the
Petitioner is dragging the matter. No doubt the
liability to pay is yet to be finally decided in
appeal. The order of the Magistrate is of payment
of fine. How the fine would be appropriated, is
another aspect. The Hon'ble Supreme Court, in the
matter of “Dilip S. Dahanukar” cited supra, was
dealing with the order of compensation under
10.
Section 357(3) of Cr.P.C.
The present matter is not case under
Section 357(3) of Cr.P.C. Still, however, while
suspending the fine under Section 389 of Cr.P.C.,
keeping in view rival claims which are yet to be
finally decided in Appeal, it will be reasonable
that interest of the complainant as well as the
accused, both are safeguarded. The prayer in the
present Petition is to stay the impugned order to
the extent of direction of deposit of entire
amount of fine within fifteen days. Looking to the
amount of cheque concerned, it would be reasonable
that instead of Rs.6,50,000/ directed to be
deposited as fine, the sentence of payment of fine
is suspended, subject to condition of deposit
of Rs.4,24,040/, for which some reasonable time
is given.
following order:
For the reasons mentioned above, I pass
11.
O R D E R
(A) The Writ Petition is partly
allowed.
(B) The impugned order dated 16th
January 2014, below Exhibit 5 in
Criminal Appeal No.3 of 2014 passed
by the Additional Sessions Judge,
Kopargaon is modified regarding the
direction to deposit entire amount
of fine within fifteen days.
(C) Instead, it is directed that the
order of fine shall stand suspended
during pendency of the appeal,
subject to deposit of Rs.4,24,040/
Thousand Forty only).
(D)
It
is
(Rupees Four Lakh Twenty Four
reported
that
Rs.1,50,000/ (Rupees One Lakh Fifty
Thousand) have already been
deposited with the Court of Judicial
Magistrate, First Class by the
Petitioner. The balance be deposited
in two installments. The first
installment shall be paid within one
month from today and the second
installment shall be deposited
within one month thereafter.
(E) It is made clear that if the
first installment as directed above
is not deposited, the order of
suspension of sentence shall stand
withdrawn.
Rule is made partly absolute on
the above terms.
[A.I.S. CHEEMA, J.]
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