Partly allowed

Madhukar D. Vanjare v. the State of Maharasthtra and Anr.

Bombay HC18 Jul 2013REVN/28/2013

Case brief

AI extract

What is this about?

In a criminal revision application challenging a conviction under section 138 of the Negotiable Instruments Act for multiple dishonoured cheques, the High Court held that procedural irregularities under section 363 CrPC do not vitiate the sentence. The Court modified the order regarding default interest rates while confirming the sentence.

What did the court decide?

The sentence of six months was confirmed. The applicant was directed to deposit the remaining cheque amount of Rs.90,000 by 12th September 2013. The order regarding interest rate was modified.

Madhukar D. Vanjare Vs the State of Maharasthtra and Anr. — Cheque Dishonour | Bombay HC (2013)

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vrd 1 REVN28/13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL REVISION APPLICATION NO.28 OF 2013
IN
CRIMINAL APPEAL NO.115 OF 2010
IN
CRIMINAL COMPLAINT NO.8165/SS/2007

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WITH

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CRIMINAL APPLICATION NO.24 OF 2013

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Madhukar D. Vanjare

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...Applicant

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v/s

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State of Maharashtra and anr. ...Respondents

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Mr A.P. Wachasunder with Mr Navin Lund for
Applicant.

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Ms V.S. Mhaispurkar, APP for Respondent No.1.
Mr Vivek Salunke for Respondent No.2.

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CORAM : K.U. CHANDIWAL J.

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DATED : 18TH JULY 2013.

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P.C.:-

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1.Heard. Concurrent findings for offence

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under section 138 of Negotiable Instruments Act

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1881 are questioned by the original accused. There

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is no controversy or issuing eight cheques covering
an amount of Rs.3,75,000/-.

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2.The accused applicant had liability with

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his earlier financier – Shramik Sahakari Bank Ltd.
In order to meet rigor of said Bank, the accused
applicant entered into a compromise which is

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subject of writ petition No.2097 of 2006. The

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consent terms are placed on record. In order to

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oblige the accused applicant, for discharging his

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obligation with earlier financier, as there was a
looming threat of disposing of his properties, the
respondent – original complainant came forward and

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agreed to release the amount. In lieu of such

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payment, the applicant issued eight post dated
cheques which were advanced by the original

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complainant – M/s Bipin Enterprises. It was also

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incorporated by the applicant that he shall not
sale, transfer, encumber, alienate the machinery

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which was mortgaged with Shramik Sahakari Bank Ltd.
It was also agreed by same clause that unless and

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until an amount of Rs.4,75,000/- advanced by
original complainant M/s Bipin Enterprises are
released, it will be treated that the property

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shall be in joint possession of M/s Bipin

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Enterprises and M/s Omkar Arts (partnership concern

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of the applicant).

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3.Before the learned Magistrate, submissions
were advanced, same were considered threadbare by
the learned M.M. And also by the first Appellate

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Court. One of the grounds before the learned
Judge in C.C. No.8165/SS/2007 was, it was

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imperative for the complainant to have sought
permission to act in tune with consent terms in
writ petition No.2097 of 2006, the learned Judge
rightly negatived the same.

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4.Before this Court, the learned counsel for

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accused applicant has canvassed, his movable
property worth Rs.15,00,000/- in the form of
machinery has been disposed off by the original
complainant, for this, an affidavit tried to be
flashed which I have not taken note of, the learned

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counsel for original complainant has rightly
disputed the same.

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5.The other facet argued by the learned

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counsel for accused applicant is, non-compliance

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of provisions of section 363 of Cr.P.C. Of
supplying copy of order of conviction on the date
of judgment vitiates the sentence. The second
ground was cheque was given for security, third was
there could not be a prosecution as according to

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the learned counsel, effect of section 219 of
Cr.P.C. comes into play.

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6.Section 219 of Cr.P.C. conceives three

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offences of same kind within a year may be charged
together.

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7.One should not be oblivious that the

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prosecution is for offence under section 138 of
Negotiable Instruments Act, the statutory mandate
indicated thereto has to be squarely dealt with
which again conceive presentation of the cheque,
dishonour thereof, issuing statutory notice in the

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stipulated period, non-receiving response to
prosecute within 30 days. There is no bar under
section 138 of Negotiable Instruments Act not to

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club case of seven cheques or ten cheques, the
effect of section 219 of Cr.P.C. will not swing in

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favour of the accused applicant.

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8.Section 363 of Cr.P.C. to which learned

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counsel gave repeated reference could not be said
to be fatal so far as the complainant is concerned,

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as it was between the Court and the accused to
receive the copy. It was merely an irregularity
and it will not vitiate the sentence recorded
against the accused applicant. One should not
neglect the effect of section 465 of Cr.P.C. It
deals with finding or sentence when reversible by
reason of error, omission or irregularity. It says
no finding, sentence or order passed by a Court of
competent jurisdiction shall be reversed or altered
by a Court of appeal, confirmation or revision on
account of any error, omission or irregularity in
the complaint, summons, warrant, proclamation,
order, judgment or other proceedings. The non-
supply of certified copy or ordinary copy after
conviction was thus an irregularity which again
will not wipe out impact of sentence imposed

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against the accused applicant.

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9.The other facet of the matter is, the
learned M.M. while imposing sentence, directed the
accused applicant to release Rs.3,50,000/- with
interest at the rate of 14 % p.a. On the amount of
cheque from the date which they bear till the
amount is fully realised. The same order is
confirmed in appeal. Though the complainant
justifiably pointed agreement arrived at between
him and accused applicant in writ petition No.2097
of 2006 providing interest at the rate of 14 % p.a.
On the amount advanced by the complainant, however,
in the matter of such category whether accusations
are hearld against the complainant, the application

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of interest confirmed in appeal calls for
interference. To this effect, the order is

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modified.

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10.The revision is partly allowed, sentence of

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six months confirmed, the revision applicant is
directed to release cheque amount of Rs.3,75,000/-.
The revision applicant from the available record
has deposited Rs.2,85,000/- in different Courts.
He shall additionally deposit Rs,90,000/- (Rupees

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Ninety Thousand only) upto 12th September 2013

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either directly payable to the original complainant
or by depositing the same in this Court. The

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applicant shall communicate in writing to original
complainant if the amount is deposited in this
Court.

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11. This Court has not expressed any opinion

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on the original complainant disposing off the
machinery / movables. The aggrieved party has
independent remedies which are kept open.

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12.The original complainant is at liberty to
withdraw the deposited amount either from this Curt
or from the Trial Court or Appellate Court with

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accrued interest. Applications are disposed off.

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( K.U. CHANDIWAL J.)

Madhukar D. Vanjare v. the State of Maharasthtra and Anr.

Case brief

What is this about?

What did the court decide?

Madhukar D. Vanjare v. the State of Maharasthtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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