Dilip Ramkisan Lakhotiya vs Totaram Bhagwanrao Thosare

P.B. Varale, J.—Heard Mr. Mohta, learned counsel for the applicant and Mr. Sadavarte, learned counsel for the non-applicant No. 1. Both the applications are ADMITTED. By consent of the learned counsel for the parties, both the applications are taken up forthwith for final disposal. Both these applications are preferred by the original complainant, on whose instance the proceedings were initiated, challenging the common judgment and order passed by the learned Principal Sessions Judge, Buldhana, dated 30.03.2013 in Criminal Appeal No. 07/2005 and Criminal Revision Application No. 19/2005.

The sum and substance of the report lodged at the instance of the complainant is that the accused and the complainant were having business transactions. A cheque was issued by the accused to the complainant and on depositing the cheque, it returned back/bounced. The learned Judicial Magistrate. First Class, Mehkar by the judgment and order dated 15.1.2005 convicted the accused for commission of offence punishable u/s 138 of the Negotiable Instruments Act and sentenced to suffer simple imprisonment for six months and pay fine of Rs. 5,000/- in default to undergo simple imprisonment for three months. Being aggrieved by said judgment and order, the complainant had preferred a Revision Application No. 19/2005 seeking enhancement of the punishment, whereas the accused had preferred an Appeal No. 7/2005, challenging the conviction and sentence awarded to him, before the Sessions Court at Buldhana.

Mr. Mohata, learned counsel for the applicant submitted that the appeal preferred by the accused was allowed on the premises of the judgment of the Apex Court referred to and relied by the learned Sessions Judge, in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, which finds place at paragraph 17 of the judgment. Learned counsel for the applicant submitted that the Hon''ble Apex Court in the judgment reported in Rangappa Vs. Sri Mohan, in the case of Rangappa vs. Mohan, at paragraph 14 of the judgment, observed that the observations in paragraph 34 of Krishna Bhat''s case, may not be correct.

Mr. Sadavarte, learned counsel for the respondent No. 1 submitted that the revision preferred by the complainant was dismissed by order dated 30.08.2007 and the applicant in both the present applications, in stead of taking necessary steps challenging the dismissal of revision by the Sessions Judge, preferred the present applications. Learned counsel placed on record a copy of the revision application along with the order passed by the learned Sessions Judge, dated 30.08.2007. The same is taken on record and marked as ''X'' for identification.

Perusal of the judgment and order passed by the learned Sessions Judge, dated 30.03.2013 show that the learned Judge proceeded to decide Appeal No. 7/2005 and Revision No. 19/2005 by said common judgment. The learned Judge observed at paragraph 6 that he is disposing of these two proceedings. Perusal of the judgment and order further show that the learned counsel representing the complainant was unable to mark his presence before the Court and the learned Sessions Judge, on the basis of a detailed notes of argument submitted before the trial Court, considering the same for deciding the proceedings i.e. the appeal and revision. Thus, what emerges from the above referred facts is the learned Sessions Judge was not at all aware of dismissal of the revision and the judgment of the learned Sessions Judge proceeded on the premise of part of Apex Court judgment in case of Krishna Bhat on which he relied and the same was subsequently not approved by the Apex Court.

Considering all these facts, in my opinion, the ends of justice would be met by remanding the matter back to the learned Sessions Judge for deciding afresh on the backdrop of the observations of this Court and after giving opportunity to the parties of hearing.

In the result, the applications are partly allowed.

The common judgment and order passed by the learned Sessions Judge, dated 30.03.2013 is quashed and set aside.

The matter is remanded back to the learned Principal Sessions Judge, Buldhana for deciding Criminal Appeal No. 07/2005 and Criminal Revision Application No. 19/2005, afresh.

The exercise of fresh decision be completed as early as possible and preferably within a period of six months from the date of this judgment.

With these directions, both the applications are disposed of accordingly.