REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 643 OF 2011

(Arising out of SLP(Crl.) No.3045 of 2008)

Milind Shripad Chandurkar

…

Appellant

Versus

Kalim M. Khan & Anr.

… Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1.

Leave granted.

2.

This appeal has arisen out of judgment and order dated

18.2.2008 passed by the High Court of Judicature at Bombay in

Criminal Revision No.656 of 2007 by which the High Court has set

aside the judgments and orders of the trial Court as well as of the

Appellate Court convicting the respondent no.1 for the offences

punishable under Section 138 of the Negotiable Instruments Act, 1881

(hereinafter called the Act 1881) and sentencing him for the period,

till the rising of the Court and to pay compensation of a sum of

Rs.7,00,000/-. Failing which, the respondent would serve simple

imprisonment for a period of six months.

3.

The facts and circumstances giving rise to this case are that the

appellant/complainant claimed to be the sole proprietor of the Firm,

namely, Vijaya Automobiles, which had the business of supplying

fuel. The firm had supplied a huge quantity of diesel to respondent

no.1 in the month of March 2005. In order to meet the liability, the

Respondent no.1 made the payment vide Cheque No.490592 dated

28.4.2005 in the name of the said proprietary Firm drawn on

Development Credit Bank, Kurla Branch, Bombay for an amount of

Rs.7,00,000/- (Rupees seven lakhs only). The appellant/complainant

deposited the said cheque in the account of the said Firm in Bank of

India Uran Branch on 12.9.2005.

4.

The Development Credit Bank returned the said cheque

mentioning “unpaid” with a Memorandum “funds are insufficient”.

2

The appellant/complainant sent notice dated 11.10.2005 by Registered

A.D. post as well as under certificate of posting. The respondent

no.1/accused did not accept the notice sent by Registered A.D. post.

However, the notice sent by certificate of posting stood served upon

him as the respondent no.1 admitted the said fact in his statement

under Section 313 of the Code of Criminal Procedure, 1973

(hereinafter called Cr.P.C.). The respondent no.1/accused neither

replied to the notice, nor made the payment within 15 days of the

receipt of the notice.

5.

The appellant/complainant filed a complaint case no.545 of

2005 before the Judicial Magistrate, First Class, Uran under section

138 of the Act 1881 on 22.11.2005. The case was tried, however, the

respondent no.1/accused did not enter the witness box and after

considering the case, the trial Court vide judgment and order dated

22.12.2006 concluded the trial convicting the respondent no.1 to

suffer simple imprisonment till rising of the court and to pay

compensation of Rs.7,10,000/- and in default of payment thereof, to

suffer simple imprisonment for six months. It was directed that out of

the aforesaid amount of compensation, a sum of Rs.10,000/- be

credited to Raigad District Legal Aid Committee.

3

6.

Being aggrieved of the aforesaid judgment and order, the

respondent no.1/accused filed Criminal Appeal No.85 of 2006. The

learned Sessions Judge vide judgment and order dated 18-19/9/2007

dismissed the said appeal, with the amount of compensation being

reduced from Rs.7,10,000/- to Rs.7,00,000/-. Thus, the direction to

credit the amount of Rs.10,000/- to Raigad District Legal Aid

Committee was set aside.

7.

Being aggrieved, respondent no.1 preferred Criminal Revision

Application No.656 of 2007 before the High Court which has been

allowed vide judgment and order dated 18.2.2008 (impugned) only on

the ground that the appellant could not produce any evidence to

establish that he was the sole proprietor of the proprietary concern in

question. Hence, this appeal.

8.

We have heard Shri Shekhar Naphade, learned se