Criminal Writ Petition No.138 of 2014

6th May, 2014

Petitioner Counsel: Shri N.V. GAWARE
Respondent Counsel: Shri A.K. KANAWADE, Shri V.D. GODBHARLE

Cases Cited:
Bikram Kumar Jena Vs. State of Orissa and another, 2010(5) ALL MR 895 (S.C.)=2010(4) Crimes 594 [Para 6]
N. Henry Vs. Vijaya Kumar, 2010 DGLS(DOC) 425 [Para 6]
Dilip S. Dahanukar Vs. Kotak Mahindra Co. Ltd. and another, 2007 ALL MR (Cri) 1775 (S.C.)=2007 (6) SCC 528 [Para 7,8,9]

JUDGMENT

JUDGMENT :- In this matter, Rule was issued on 30th April, 2014 and the matter has been finally heard.

2. Respondent No.1original complainant is 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.

3. It is claimed that against the Judgment 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 directions of depositing entire amount of fine within fifteen days.

5. The contesting Respondent No.1 societyoriginal 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 Petitioner-accused had, after verifying the accounts, issued the cheque of Rs.4,24,040/- but the same was dishonoured. There was Arbitration Case in Co-operative 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 Co-operative 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 affidavit-in-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 : [2010(5) ALL MR 895 (S.C.)], 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 deserves to be given benefit.

7. 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 : [2007 ALL MR (Cri) 1775 (S.C.)]. 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 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 before the Hon'ble Supreme Court to deposit Rs.1,00,000/-.

8. Against this, the learned counsel for Respondent No.1 referring to the contents of the affidavit-in-reply 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 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 affidavit-in-reply. It is argued that there is no financial stringency faced by the Petitioner but the whole thing is that the 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", [2007 ALL MR (Cri) 1775 (S.C.)] 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 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 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", [2007 ALL MR (Cri) 1775 (S.C.)] cited supra, was dealing with the order of compensation under Section 357(3) of Cr.P.C.

10. 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.

11. For the reasons mentioned above, I pass following order:-

ORDER

(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/-(Rupees Four Lakh Twenty Four Thousand Forty only).

(D) It is 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.

Petition partly allowed.